Monterey County Civil Grand Jury 2014-2015 Final Report

Recommendations 22

• R1
  OES continues training city personnel in the application and use of AlertMontereyCounty.
• R2
  OES reaches all agencies operating within the county—including Highway Patrol, Sheriff, and CalFire—for training in the use of AlertMontereyCounty.
• R3
  CAO immediately commits resources (financial and personnel) needed to publicize Alert- MontereyCounty with the goal of registering all wireless telephones by a specified target date.
• R4
  OES works with local libraries throughout the county to distribute information about Alert- MontereyCounty and to assist patrons in registering wireless telephones. All libraries should be participating
• R5
  County and municipal governments require all county and municipal employees to register their wireless telephones 7
• R6
  OES seeks the assistance of Everbridge in developing alternatives, , for residents to register for AlertMontereyCounty. These alternatives may include but not be limited to: a) Telephone b) Printed application that can be mailed to the OES.
• R7
  OES requests Everbridge to provide a Spanish language registration form
• R8
  OES asks those institutions or agencies currently using their own notification systems (the City of Carmel, CalFire, Monterey Peninsula College, Hartnell College, and the Naval Postgraduate School) to encourage constituents to register with AlertMontereyCounty
• R9
  OES works with senior centers, assisted living facilities, and medical facilities to educate and register staff, members, and residents.
• R10
  CAO convenes a working group of emergency services personnel and interested parties to promote registration with AlertMontereyCounty.
• R11
  As a supplemental funding mechanism, partnerships be formed whereby local businesses pay for the cost of printed materials promoting registration in exchange for printing their name and logo on the materials.
• R12
  MCWD provide mandatory and ongoing training for all board members, effective immedi- ately.
• R13
  MPWMD and MCWD keep abreast of new technology for conservation and desalination and utilize such technology when economically feasible.
• R14
  MCWD and MPWMD make all possible efforts to form an agreement with the signers of the wastewater MOU with the goal of having such an agreement in place
• R15
  The City Attorney manage the selection, and oversee the engagement of outside legal counsel, including the review and approval of their billings.
• R16
  Funds should be sought to purchase electronic mail scanning equipment for the mail room.
• R17
  When the Jail Medical Services contract next comes up for bid, it should be widely adver- tised and proposals should be actively solicited from as many different contractors as pos- sible.
• R18
  Analyze the possibility of providing medical services run by the Sheriff’s Office, in part- nership with Natividad Medical Center. 150
• R19
  The Sheriff should conduct a thorough analysis of all the causes of overtime, with the pur- pose of providing solutions.
• R20
  Allocate appropriate funds for the ongoing maintenance of the current Jail facility.
• R21
  In addition to the regular annual inspection, the Monterey County Health Department should conduct at least one unannounced inspection of the Jail facility each year.
• R12-13
  servers. Before each laptop computer is assigned forces rights, and promulgates to an employee of Natividad Medical Center, it under- regulations, develops policy goes a total volume disk encryption, which prevents and provides technical assis- unauthorized access to data storage. If the user is unable tance and public education to to connect with the system, the laptop becomes unus- ensure understanding of and able. compliance with HIPAA privacy and security laws. Every night the workstation computers are scanned for Health Information Exchange security. All websites accessed by staff are content fil- (HIE): the mobilization of tered and scanned for viruses on an ongoing basis. Some healthcare information elec- have USB ports turned off. Users have access only to tronically across organizations those networks for which they have a need to access. within a region, community or Smart phones can only access a guest network; they hospital system. have no internal access. Employees can be set up to ac- Information Technology (IT): the cess their Natividad network email via their smart application of computers and phones, but users must give permission for phone wipes telecommunications equipment by the IT Department, which would completely elimi- to store, retrieve, transmit and nate all storage data on the user’s cell phone. manipulate data, often in the context of a business or other The IT Department staff through its system can deter- enterprise encompassing com- mine who accesses data, what data is accessed, where puter hardware, software, elec- and when it is accessed, and what is printed. All accesses tronics, semiconductors, to patient records are logged. Any suspicious activity can internet, telecom equipment, e- be traced to a specific workstation for follow-up. commerce and computer serv- ices. The Natividad IT Department is working with other Protected Health Information county hospitals to create a Health Information Ex- (PHI): any information about change (HIE) where patient information can be shared health status, provision of electronically. Salinas Valley Memorial Healthcare Sys- health care, or payment for tem, Natividad Medical Center, and Community Hospi- health care that can be linked tal of the Monterey Peninsula are close to being able to to a specific individual, includ- connect with each other. Mee Memorial Hospital will ing any part of a patient’s med- follow. The HIE will be inclusive of county clinics and ical record of payment history. 63 the Monterey County Health Department. Even without the HIE in effect, the IT Department re- ported that paper breaches are more common than electronic breaches at Natividad. When re- quested, printed medical information is physically given to a patient for transmittal to another service provider, because Natividad Medical Center is not yet able to transmit data through an HIE. TRAINING OFALLSTAFF, EMPLOYEES, AND THIRD PARTYVENDORS All staff are trained in their IT responsibilities when they are hired, and they receive security training regularly. Before being hired, each must pass a background check. Third party vendors must also go through training and execute contracts drafted by counsel for the IT Department to ensure compliance with Natividad’s patient PHI policies and procedures. All users have unique passwords to log on to workstation laptops. There are separate passwords for the various networks. They must be changed frequently, and no similarities to former pass- words are allowed. The system will lock out the user on multiple failed login attempts. All pass- words and account information are kept in a vault for access by IT staff when necessary. The IT system scans email coming in and going out of its networks. It blocks spam and any unauthorized links. It examines any suspected infections to the networks. POLICIESAND PROCEDURES TOACHIEVE COMPLIANCE AND SECURE SENSITIVE INFORMATION Natividad Medical Center staffs its IT Department 24 hours a day, 7 days a week, every day of the year. A minimum of two (2) IT staff are on call at all times. Natividad Medical Center de- votes 5.5% of its budget, approximately $10 million to IT. Currently, Natividad’s IT requires one factor (password) for access to the networks. The IT De- partment is moving toward two factors (badge and password) as a single access for all authorized platforms and auto logout users. This will eliminate the need to open multiple platforms and speed workflow. There is a formal handbook containing specific information for compliance with policies and procedures. Troubleshooting occurs regularly, and IT Department staff monitor the system 24 hours a day to protect the community that utilizes the services of Natividad Medical Center. MCCGJ was pleased to learn of the standards and quality of care by Natividad’s IT Department. One important aspect of Natividad’s service to the community is its readiness to communicate medical diagnoses and treatment in languages of the people it serves, including multiple dialects. Persons with language skills are on call to translate for patients and their families when no staff can. Currently Natividad has legally required written notices to persons who are impacted by PHI breaches in English and Spanish. If there are other languages commonly used by a large number of its patients, those notices should be translated for their understanding, as well. FINDINGS F1. The separation of Natividad’s IT Department from the County’s IT Department in 2009 was warranted, due to unique regulations and auditing standards for health provider insti- tutions. F2. Natividad Medical Center is exemplary of best practices in its protection of patients’ PHI. F3. Natividad Medical Center has 24/7 IT Department staff well-equipped to prevent cyberat- tacks. F4. Natividad Medical Center minimizes downtime of its IT networks by dedicated, continual monitoring. F5. Language translation services should be utilized in preparing written notices to persons im- pacted by PHI breaches whose common language is other than English or Spanish. F6. A weak link exists in security of PHI with hand-delivered paper documents. RECOMMENDATIONS R1. Natividad Medical Center share its IT Department model with other county hospitals as a standard of excellence when appropriate at all upcoming opportunities. R2. Natividad Medical Center immediately review and ensure that its notices to the public about HIPAA breaches are written in languages commonly understood by the impacted persons. R3. Natividad Medical Center continue to improve and update best practices for secure physi- cal delivery of PHI documents to other healthcare providers and individual patients while awaiting an active HIE for secure transmittals. RESPONSES REQUIRED Pursuant to Penal Code Section 933.05, the Grand Jury requests a response to all Findings and Recommendations from the following governing body: • Monterey County Board of Supervisors 65 APPLICABLE PRIVACY LAWS AND ENFORCEMENT MEASURES Notice Laws California’s Data Breach Notification Statutes provide that agencies (Civil Code §1798.29) and businesses (Civil Code §1798.82) who maintain computerized data that includes personal infor- mation of others must notify individuals of any breach of their personal data immediately upon discovery. Personal information is defined to mean (1) a person’s user name or email address in combination with a password or security question and answer that would allow access to an on- line account or (2) a person’s name and one of the following: • Social Security number • Driver’s license or California identification number • Account number, credit card number, debit card number, with any required security code, access code, or password that would allow someone to access the individual’s account number • Medical information1 • Health insurance information2 The HIPAA Final Omnibus Rule of 2013 requires agencies and businesses sending notices for a breach that effects 500 or more residents of California to send a copy of the written Notice to the California Attorney General, thereby making a record of the crime. As of February 20, 2015, there were 18 reported in 2015 throughout California. Law Enforcement The OCR arm of the U.S. Department of Health and Human Services is tasked with enforcing the privacy and security laws. It has three functions. (1) It teaches health and social service work- ers about civil rights, health information privacy, and patient safety confidentiality laws that they must follow; (2) It educates communities about civil rights and health information privacy rights; and (3) It investigates civil rights, health information privacy and patient safety confidentiality complaints to find out if there is discrimination or violation of the law and takes action to correct problems. Medical information as defined by the Civil Code is any information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional. Health insurance information as defined by the Civil Code is an individual’s health insurance policy number or subscriber identification number, any unique identifier used by a health insurer to identify the individual, or any information in an individual’s application and claims history, including any appeals records. CARMEL-BY-THE-SEA A GOVERNANCE REVIEW 67 68 CARMEL-BY-THE-SEA A GOVERNANCE REVIEW SUMMARY In the fall of 2014 the Monterey County Civil Grand Jury (MCCGJ) received a written complaint from a group of Carmel-by-the-Sea (Carmel or City) residents asserting that during 2012-2014 the City’s governance and administration had “substantially failed.” The complainants requested that the MCCGJ investigate various alleged improper activities such as fiscal irresponsibility, lack of transparency, unfair treatment of employees, legal exposure, and others, and determine what led to the failure of proper oversight during the period. The complainants also asked the MCCGJ to recommend how Carmel’s governance structure may be improved to avoid such problems in the future. At the same time, the MCCGJ received a written request (see Attachment 1) from the Mayor and City Council asking that the MCCGJ review the City’s organization—the adequacy of its poli- cies, internal controls, safety checks, and recent corrective actions—and make any recommenda- tions to ensure a more robust functioning of Carmel’s government. The MCCGJ undertook the investigation as requested by the Mayor, City Council and citizens. Carmel-by-the-Sea is a California General Law City (California Government Code Section 34000 et seq) founded in 1902 and incorporated on October 31, 1916. Under California Penal Code Section 925a, Grand Juries may investigate and report upon the operations, accounts, and records of the officers, departments and functions, and the method or system of performing the duties of any city and make such recommendations as it may deem proper and fit. The investigative process led to some general conclusions by the MCCGJ: • That in the years preceding the period covered in this Report the City had significant lack of compliance, Human Resources (HR) issues, and outdated systems and processes that aggravated the City’s problems during 2012-2014; • That the steps taken to bring the City into compliance and mitigate legal exposure en- countered pushback from City employees and the citizenry; • That the City Council and citizenry did not fully understand the “City Manager” form of government and the rules governing how the Mayor, City Council and administrators may interact; • That the actions of the Mayor and City Council appeared to place more importance on avoiding public criticism, unfavorable media exposure and the threat of litigation than on conscientious oversight and governance; • That many of the articles in local media heightened or escalated local concern by echoing the one-sided viewpoints of terminated employees since the City was prohibited by law from disclosing its reasons for terminations. BACKGROUND The governance of Carmel is controlled by the General Law provisions of the California Govern- ment Code (CGC) beginning at Section 34000. CGC section 36501 authorizes that general law cities be governed by a City Council of five members, a City Clerk, a City Treasurer, Police and Fire Chiefs, and any subordinate officers or employees required by law. In the mid-1970s, Carmel adopted the City Manager/Weak Mayor form of local government, which combines the political leadership of elected officials with the strong managerial experi- ence of an appointed local government manager. This form establishes a representative system where all power is concentrated in the elected City Council (Council), which hires a profession- ally trained manager (Carmel uses the term Administrator) to oversee the delivery of public serv- ices. It is the Council’s duty tosupervise the performance of the City Administrator as well as the City Attorney, City Treasurer and City Engineer. The Carmel Municipal Code (CMC) provides that the City Administrator appointed by the Coun- cil is the administrative head of the City’s government, under the direction and control of the Council. The Administrator brings to local government the benefits of training and experience in administering projects and programs on behalf of the governing body and carries out the Coun- cil’s policies, ensuring that the entire community is being served. It is the responsibility of the Administrator to make certain that municipal laws and ordinances are enforced, to oversee fiscal and budgetary matters, to manage all employee actions, and to provide administrative direction for the day-to-day operations of all departmental activities. The Administrator also serves as the Council’s chief adviser. The role of the City Council is set forth in the Carmel Municipal Code (CMC), Chapter 2.08 (see Attachment 2). Under City Manager/Weak Mayor government, Council members are the leaders and policy makers elected to represent the community and to concentrate on policy issues that are responsive to citizens’ needs and wishes. Power is centralized in this elected legislative body, which approves the budget and determines the tax rate. The Council also focuses on the commu- nity’s goals, major projects, and such long-term considerations as community growth, land use development, capital improvement plans, capital financing, and strategic planning. The Mayor is a member of the City Council and holds the same power as the other Council members. He/she has one vote and no veto power. The Mayor sets the agenda and manages the Council meetings, and performs a ceremonial function. Notwithstanding this limited authority of the Mayor under the law, the MCCGJ investigation revealed that during the period in question, the Mayor played a strong and influential leadership role in the City’s governance. The CMC also provides that the City Council deals with administrative services and department heads only through the City Administrator, except for purposes of inquiry. The MCCGJ under- stands this exception to mean that the Council members may—and indeed should when needed—inquire of those engaged in the City’s administration concerning City affairs. How the City Council and the City Administrator are permitted to interact is severely constrained by the Ralph M. Brown Act, which mandates that, with certain limited exceptions, the only meetings of a majority of the Mayor and City Council with the City Administrator to discuss City business must be held during a duly convened, public Council meeting. The most common exceptions that permit “closed sessions” of the Council concern matters relating to litigation, real estate transac- tions, and personnel issues. INVESTIGATIVE METHODOLOGY In preparation for this investigation, the MCCGJ reviewed laws that apply to various kinds of local governments as well as the specific characteristics and processes of a General Law City, the policies and procedures of a City Manager form of government, and applicable transparency and ethics laws including the Ralph M. Brown Act, the California Public Records Act and the Politi- cal Reform Act of 1974. DOCUMENT REVIEW To understand the background of Carmel’s governance problems and to sift out factual evidence from the flood of media coverage, citizen claims, and widely circulated rumor, the MCCGJ first performed an in-depth review of the Carmel Municipal Code, the California Government Code provisions covering General Law Cities, and the City Council Rules and Procedures, and then carefully reviewed additional documents, including: • Minutes of all City Council meetings from January 2012–November 2014 • Carmel Public Records Act Response Policy adopted by City Council on August 5, 2014 • Correspondence • City contracts • Attorneys’ engagement agreements and billings • Financial data • “The Municipal Organization—Past, Present and Future:” an overview report by new City Administrator Doug Schmitz dated November 4, 2014, as updated March 3, 2015. • Citizen petition • Newspaper articles • Investigative reports • Court-ordered search warrant • Employee emails where provided • City records produced in response to the MCCGJ’s subpoena • Citizen complaints • Investigative Report on City of Carmel-by-the-Sea Contracts, dated May 5, 20151 1 The MCCGJ is not able to accept this report because of its limited and selective scope, its failure to recognize the City’s historic and systemic contract process problems, the conspicuous lack of an inter- view with the City Administrator who was in office, and the absence of an audit prepared according to Generally Accepted Accounting Principles, as would have been provided by the use of a Certified Pub- lic Accountant. INTERVIEWS The MCCGJ conducted twenty-four personal interviews with individuals believed to have infor- mation relevant to this investigation. All interviewees signed an “admonishment” pledging not to disclose the fact of their interview, what questions were asked, and what answers were given. In- terviewees were in the following categories: • Current and former elected officials • Current and former employees • City residents • City contractors and service providers • Individuals representing the multiple complaints received by the MCCGJ KEY REQUESTS MADE BYTHE MCCGJ As the discussion below will illustrate, the City engaged in a “request and deny” strategy, which served only to cause many weeks of delay. The investigation was further hampered by instruc- tions from the City Attorney and private legal counsel advising some interviewees not to answer MCCGJ questions relating to personnel matters of which they had direct, personal knowledge. Security System Audit In July 2013, the City contracted for professional services to perform a complete audit of the ex- isting IT system and to report findings and security concerns. The security system audit was in- termixed with related contracts for technical assistance and forensic services investigating reported unauthorized access to employee emails and protected accounts, so it is difficult to as- certain how much of the approximately $383,000 total spent on forensic services actually related to the audit. The audit report was described to the MCCGJ as an estimated 150 pages in length listing more than 800 security vulnerabilities. The MCCGJ asked to see the report. In response to the MCCGJ’s request, the City reported that the audit report could not be found, preventing the MCCGJ from assessing the City’s response to this key report and from assessing the value of the “deliverable” for this large contract. Waiver of Attorney-Client Privilege Because of the considerable use by the City of outside legal counsel between 2012 and 2014 for employee terminations, Public Records Act (PRA) request reviews, HR matters, contract matters, and general legal services at a cost to the City of more than $475,000, the MCCGJ wanted to know more about the involvement of the City Attorney in such services and whether he has a regular procedural role in a defined list of City matters or is “on call” when needed. The MCCGJ also wished to speak with the outside attorneys who acted for the City in the areas noted above, to gain clarity about the appropriate use of separately retained counsel and to help determine if charges of cronyism were founded. For these, and only these, purposes the MCCGJ requested a waiver of attorney-client privilege. In response to this request, the City staff used outside counsel to inform the MCCGJ that it would not waive attorney-client privilege, preventing the Grand Jury from examining this criti- cally important area. Waiver of City Council Closed Session Privilege To further its investigation and gain insight into City Council processes regarding establishment of key initiatives and priorities, approval of contracts, supervision of the City Administrator, (and City Attorney, Treasurer and Engineer), public records request positions, and knowledge of major personnel actions taken, the MCCGJ requested waiver of the City Council’s closed session privilege for these, and only these, purposes for the period 2012-2014. In response to this request, the Mayor and Council voted on Feb. 10, 2015 to table the request until outside counsel could be consulted. The waiver was subsequently not granted. Selected Personnel and Investigative Files In order to form conclusions about the City’s HR processes and the appropriateness of its major personnel actions during 2012-2014, the MCCGJ in January 2015 requested specific files for the affected employees relating to employment contracts and agreements, performance evaluations, progressive discipline, investigations, terminations and rehiring. In response to this request, the MCCGJ was advised by the City Attorney to narrow the scope of the request. The MCCGJ complied by providing a shorter list of items, notably those records re- lating to the process of handling employee matters of behavior, terminations, and rehiring. This more limited request was made in writing to the City Attorney and in a personal meeting with the Mayor and City Administrator. The MCCGJ’s letter was provided to local media media by some- one other than the MCCGJ, despite its confidential nature. The City then advised that it would not comply without a court order, so a subpoena was issued by the Presiding Judge of the Monterey County Superior Court and served on the City. Shortly thereafter the City filed a motion to quash the subpoena. In the subpoena hearing, the City Attor- ney argued that the MCCGJ must disclose why each document was requested. On March 29, 2015, the Monterey County Superior Court issued its decision that the MCCGJ must provide an in-camera (confidential to the court only) showing that the MCCGJ’s need for the requested disclosure of personnel information outweighs the employees’ California constitu- tional right of privacy. The MCCGJ filed the requested showing on April 1, 2015, and the City quickly followed up with a letter to the Court asking to be present at any related confidential hearing. The Court denied the City’s request. On April 7, 2015, the MCCGJ was asked by the Court for more information. The MCCGJ’s response was filed with the Court on April 8, 2015. In a court order dated April 8, 2015, the Court ruled that the City’s motion to quash the subpoena was denied, and that the requested records must be produced. The records were provided to the Court, which subsequently released them to the MCCGJ on April 23, 2015 along with a protec- tive order providing for their return to the City after examination. INVESTIGATIVE METHODOLOGY SUMMARY The comprehensive research and fact-finding done by the MCCGJ over seven months and through nearly 1500 hours of document review, personal interviews, and analysis have revealed a reasonably clear picture of governance in Carmel City Hall prior to 2012 and the part it played in the City’s chaos that followed. The MCCGJ has also been able to form conclusions about the chain of events that took place between 2012 and 2014, and how the City’s governance processes shaped those events. These conclusions have been verified with multiple sources, and they will appear in the Findings section of this Report. Although the City has not fully cooperated in providing information that would conclusively corroborate certain of the Findings, the MCCGJ nevertheless believes that this Report is accurate and complete. DISCUSSION THE SCOPE OFTHE INVESTIGATION In the course of this investigation, the Civil Grand Jury examined a number of obvious problem areas in the City’s government, most notably the clash between old and new administrative styles, a lack of knowledge and attention on the part of City Council members, information tech- nology security breaches, departmental irregularities, and allegations of misconduct. To assess these areas, the MCCGJ focused on the operating conditions of the City prior to the new admin- istration, the directives given to City Administrator Jason Stilwell by the Mayor and City Council upon his hiring, the actions of senior City staff from November 2011 through 2014, the propriety of personnel actions taken by the City, including terminations and rehiring, and the City’s gover- nance throughout the period. THE STATE OFTHE CITY BEFORE 2012 Following the economic slowdown of 2007 to 2010, the City of Carmel was left understaffed. The director’s position in most departments had been vacant through retirement or separation, and this attrition caused many employees to take on multiple responsibilities. Most departments were affected, but the areas of Human Resources, Finance and Administration, and Planning were the most severely impacted. In 2011, the staff of this charmingly unique City was a collegial group. City business was con- ducted, but in a quietly unorthodox manner for a municipal organization. Many City policies were outdated, ignored, or didn’t exist. This was especially evident in the areas of: • Financial Management (contract administration, payroll, purchasing, etc.); • Human Resources (performance reviews, progressive discipline, salary ranges, job de- scriptions, etc.); and • Administration (Public Records Act requests and Information Technology—network se- curity, password administration, access to City files by unauthorized employees, etc.). Interviews with the then City Council members revealed a serious lack of knowledge about the depth of these issues at the time (late 2011). The interviews also exhibited differing understand- 74 ing of the responsibilities of City Council members in a General Law City using a Weak Mayor form of government. Answers by Council members varied widely when asked what they be- lieved were their responsibilities as a City Council member. Though some failed to mention oversight, the critical item consistently missing in the answers was the power of inquiry, cited in the Background section of this Report. City Council members also consistently explained that they had had no authority regarding the actions of the City staff, despite the fact that the Carmel Municipal Code clearly cites the City Council’s supervisory responsibility over the City Administrator, City Attorney, City Engineer and City Treasurer. Council members’ understanding of the role of the City Treasurer was frag- mented and none could explain why the Treasurer (a contract, part-time position) was not in- volved in the tracking of contract disbursements, a chronically troublesome area. Many witnesses acknowledged that the City’s financial accounting was inefficient, cumbersome, and error prone. The software is antiquated and its (limited) capabilities not fully implemented. Most management reports were developed on off-the-shelf spreadsheet software, after manual input from the financial system. These deficiencies made it difficult for City staff to provide the City Council with contract payment schedules and accumulated payment tracking reports. THE NEW CITYADMINISTRATION Following the departure of former City Administrator Mr. Rich Guillen, Mr. Jason Stilwell was hired in November 2011 as the new City Administrator. Mr. Stilwell’s education and background were impressively deep in municipal finance, budgeting, state laws, municipal codes, and public administration systems and procedures. Mr. Stilwell also brought a large-organization perspec- tive to a small City—something that would eventually cause difficulties. Mr. Stilwell immediately observed the lack of process discipline, and took measures to under- stand the severity and the alternatives for problem solving. He began to staff the directors’ posi- tions that had been eliminated by the economic downturn. A key hire was Administrative Services Director, Ms. Susan Paul, in January, 2013. Ms. Paul was a 30-year municipal adminis- tration veteran with expertise in policy, municipal codes, purchasing systems, human resources and compliance, and her assignment as Director was to bring together, organize, and manage the functions of purchasing, contracts, finance, human resources, and the City Clerk. Contrary to what many residents and employees believed, the MCCGJ verified that Ms. Paul was hired through a competitive recruitment and interview process in which Mr. Stilwell did not partici- pate. Mr. Stilwell was employed by the City for 14 months before Ms. Paul was hired. When she as- sumed the Administrative Services Director position, they worked together to implement organi- zational changes, making personnel appointments, and instituting policy and procedural changes needed to move the City into compliance with City policies, the Municipal Code, and the various demands of fiscal and proper management of the public’s resources. Ms. Paul acted quickly and decisively, although often in what has been described as an abrupt and non-communicative man- ner that began to cause irritation and resentment. Problems identified by Ms. Paul and Mr. Stilwell included compliance violations, mishandling of contracts and payments, Human Resource issues, network security breaches, and other procedu- 75 rally deficient activities. These new administrators also uncovered employee behavior that they judged to be improper or dishonest, that put the City at risk, or that was a misuse of the City’s re- sources for personal gain. Such behavior was dealt with swiftly by Ms. Paul, sometimes resulting in terminations, or in suspensions followed by terminations. Progressive discipline (which was not legally required) was rarely used, causing many ensuing problems and legal actions.. Multiple witnesses described Jason Stilwell as extremely bright and experienced in the manage- ment of a municipal organization. Although he received public accolades and positive perform- ance reviews from the Mayor and City Council for his performance, he was also described as “not a good communicator.” The MCCGJ believes that he failed to recognize the long-term and collegial relationships among the “Old Guard” employees (see “Five Forces” section below) and was not sensitive to the long-standing organizational culture at City Hall. Much the same can be said about Ms. Paul. She was an experienced, professional municipal manager who also underes- timated the significance of the existing relationships and the coordinated pushback that would occur when long-term employees or contractors were terminated, even with what would other- wise be “good cause.” Her style was described as loud, aggressive, and at times abrasive. Though personality clashes and major dysfunction ensued, the MCCGJ found no evidence of malicious motives by either Mr. Stilwell or Ms. Paul. Both held a strong desire to succeed, and both wanted to fix what many witnesses described as “a mess.” It should be noted that neither Mr. Stilwell nor Ms. Paul was able to completely implement pro- cedurally sound workflow systems during their employment. A review of the files covering con- tracts generated during their tenure showed that a number contained the same issues that they were trying to remedy—missing statements of work, payment schedules, and milestone measure- ments. Moreover, the mounting adverse employee actions and increased Public Records Act re- quests were consuming a large amount of their time. The MCCGJ was interested in the knowledge and involvement of the Mayor and City Council with what was happening under the new administration. Several witnesses testified that the Mayor and City Council received regular updates and communications regarding staff activity, personnel matters (although in some cases after actions were taken), processes and behaviors, and Code/policy violations during the 2012-2014 timeframe. Regardless, as the investigation progressed, it became clear, in the opinion of the MCCGJ, that the Mayor and City Council had vacated their responsibilities of oversight and inquiry. And when the public pressure to remove Mr. Stilwell and Ms. Paul and to rehire previously terminated employees became overbearing, it appeared that the Mayor and City Council chose public appeasement over problem solving. THE FIVE FORCES The overall function/dysfunction of the City during the three-year period of 2012-2014 can be depicted in a five-force relationship. Following are the factions that played a significant role in the disruptive conduct of the City’s business: • The Old Guard(“We’ve always done it this way…”) The long-term employees of the City were making do with limited resources, and taking short cuts to stay afloat. Because of the reduction in the work force, most departments were functioning without a director and were in the hands of employees who may not 76 have been familiar with the provisions of the Carmel Municipal Code or who did not nec- essarily know how to keep or bring the City into compliance. • The New Administration(“We need to fix this fast…”) The new administrators saw policies and practices that were undocumented, unstructured, and out of compliance, giving the City legal exposure. • The City Council With little attention to its responsibility for inquiry and oversight, the City Council was ineffective. When the Old Guard and the New Administration clashed, the Council took no action and allowed a business problem to escalate into a major public disruption. • The Carmel Pine Cone The local newspaper incited a groundswell of public opinion among the residents through articles generally biased against the New Administration. Articles supporting the Old Guard were the residents’ only source of information about employee matters in particu- lar, as the City was unable to respond to accusations for reasons of employee privacy. On November 1, 2013, the newspaper ran this statement in its Editorial Section: City employees: Please help us figure out what’s really going on at City Hall by contacting us with news tips. We guarantee your confidentiality. But DO NOT use a City computer, phone or email address to do it, be- cause those are probably being monitored by your supervisors… • The Residents Most of the politically active residents seemed to be strongly influenced by The Carmel Pine Coneand there was no real understanding of the difficult position the City was in following the strained economic period leading up to 2011/2012. Compliance issues, lack of adherence to City policy and the Municipal Code, and the impact of the absence of a professional Human Resources Director or management were not observable to the gen- eral public. CITY COUNCILORIENTATIONAND TRAINING Managing local government is not easy because issues are complex, resources are scarce, the media watches closely, and municipalities are governed with lengthy policies and Municipal Codes. Governing as a collective body is very different from running for office as an individual. Trying to remain true to one's political commitments and beliefs while also making decisions that are in the best interest of the entire community is something every elected official has to confront daily. All too often, new mayors and council members receive little more than on-the-job training to equip them for their roles. A solution to this problem is provided by the League of California Cities (The League), which provides a “New Mayors & Council Members Academy”—a must-attend for newly elected offi- cials and for veteran council members wanting a refresher course on the basic legal and practical framework in which City officials operate. The 2½-day Academy (not to be confused with the League’s Annual Meeting) is held in late January in Sacramento and includes the state mandated 77 AB 1234 Ethics course and important fundamental topics taught by subject matter experts and seasoned elected officials. The League offers a follow-up program in leadership development, the “Mayors and Council Members Executive Forum.” The MCCGJ requested information as to whether any Carmel elected officials had ever attended this Academy training. The City did not respond to the request; however information from the in- terviews suggests that although some City Council members had attended an annual meeting of the League, none had ever attended the Academy Training or the Executive Forum. INFORMATION TECHNOLOGY SECURITYAND PROCEDURES Upon the arrival of the new Administrative Services Director, Susan Paul, a review of the Infor- mation Technology network and the City’s computer systems was conducted. It was found that network security was almost nonexistent, and that several employees (some accounts say the number was as high as a dozen) reported that their files and email had been accessed without their knowledge or permission, including those of Mr. Stilwell and Ms. Paul. To locate the source(s) of this unauthorized computer access, the City contracted in February 2013 with a forensic investigator to conduct a security audit. The seriousness of some of these actions prompted a police investigation. According to interviews, the audit revealed the following pertinent facts: • Standard security software updates for servers and computers had not been applied and were several updates behind. • Wi-Fi access was unprotected and easily accessible, even from the street outside City Hall. • Many computers were not properly password protected, and multiple employees had ac- cess to computers assigned to others. • Access rights defining specific lists of individuals with levels of information privileges were compromised, and were in violation of the City Municipal Code 2.52.780 Personnel Files—Security), which states: Personnel files are private and confidential. All persons will insure that confidentiality of the records is not revealed, nor open to scrutiny by the casual observer, nor the contents altered or removed. Personnel files may be reviewed only upon authorization of the City Administrator or desig- nate with reasonable notice. Any review will be in the immediate presence of the employee having custody of the files. (Ord. 87-1 § 2, 1987). Witnesses reported that personnel files, including medical records, had been accessed, and in some cases downloaded to other City computers. • The security audit was provided to the City through a report estimated at 150 pages in length that enumerated some 800 security vulnerabilities. As noted earlier, a copy of this report was requested by the MCCGJ but it was not provided. The City was unable to lo- cate the report. 78 • Following the initial audit, another investigation was conducted into the alleged unautho- rized access of employee emails and files. The MCCGJ was informed that findings of this investigation included the following: -- Network shares were created, allowing unauthorized employee access to the comput- ers assigned to others, including access to that employee’s email and protected files. -- General computer access went beyond the administration level; employee-assigned computers were accessed with specific employee passwords. -- Some employees gained unauthorized access to the City’s computer records from their personal computers at home. -- City computers were often left logged-in while unattended, leaving them easily acces- sible by anyone. -- Examples of unauthorized files accessed were: ➛ Payroll information of a Police Services Officer and other City employees, ➛ General fund revenues and budget information, ➛ Personnel documents including private medical records, ➛ Employee performance appraisals, ➛ Emails sent to City Council members. HUMAN RESOURCES: EMPLOYEE TERMINATIONS/RESIGNATIONS The MCCGJ conducted numerous witness interviews covering the lack of structure and compli- ance violations in the handling of Human Resources procedures prior to the hiring of the new City Administrator, Jason Stilwell. Examples of such violations occurring before 2012 included: • Pay raises awarded outside of the pay grade schedule for the position without proper ap- proval to amend the pay scale, • Employees assigned HR or payroll duties without experience or job knowledge, • Some employees in positions requiring specific certifications without said certifications, • Confusion among employment status and classifications; i.e. part time, contract, at will, represented, etc., • Failure to address Causes for Disciplinary Action (Carmel Municipal Code: 2.52.340), • Failure to abide by the City Municipal Code regarding employee progressive discipline (Carmel Municipal Code: 2.52, Article IX. Disciplinary Actions). Between February 2013 and July 2014 six City employees were terminated and one employee was placed on indefinite leave. There were also two employees who resigned during this period. The employment suspensions and terminations were all approved by Mr. Stilwell and occurred after Susan Paul was hired and assumed responsibility for Human Resources. The City had not had an HR Director since 2010. Some employment terminations were preceded by a period of administrative suspensions with pay; others were done swiftly. All of the terminations occurred after extensive review by, and with advice from, outside legal counsel, hired at significant expense to the City by Mr. Stilwell. (The cost of employment matters billed by outside counsel is outlined in another section of this Report.) Several terminations had been desired or recommended much earlier by their respective managers, and witnesses reported that in at least one case the termination had not been author- 79 ized by the prior administration in order to avoid the risk of litigation. When Ms. Paul arrived, personnel actions moved to the front burner and, with the endorsement of outside counsel, went forward. Although the Carmel Municipal Code (CMC) has a discretionary progressive discipline process (CMC Article IX. Disciplinary Actions), according to witnesses this process was largely unused either before or after 2012. Under a General Law City, however, the City Administrator has the exclusive authority to administer employee discipline, including terminations, and the City Council has the right of inquiry into these matters before they are made final. Several witnesses reported that the Mayor and City Council were made well aware of the circumstances surround- ing these termination issues. However, most Council members erroneously believed that an in- quiry into these employee matters was not permitted until a termination was complete and litigation was threatened or filed against the City. Most suspensions, terminations, and resignations during this period were made public by articles in the local media (primarily The Carmel Pine Cone). As noted earlier, only the employees’ ver- sions of the acts or omissions leading to the adverse employment actions were reported, since the City was restrained by law from reporting the employer’s side to the local media concerning any individual employment matter. This one-sided reporting was instrumental in defining the public perception that most of the involved employees were treated unfairly and that the City was losing valuable talent and “institutional knowledge.” However the evidence considered by the MCCGJ indicated that there was employee conduct that violated commonly accepted employment standards and/or specific provisions of the Carmel Municipal Code. The terminations and suspensions that followed took place with the assistance of counsel and followed an appropriate process. Shortly after the hiring on October 1, 2014 of new City Administrator, Mr. Douglas Schmitz, three former long-term employees who had been fired under Stilwell were rehired and given back pay, retroactive benefits, and substantial damages payments in settlements of their threat- ened or existing lawsuits. In at least one case, the salary at rehire was significantly higher than the new position would otherwise warrant. These settlements, including the rehires, leave several areas without closure: • They were completed without the involvement of the City’s outside defense counsel, the person most knowledgeable about the facts and legal issues of these terminations. • The rehiring of these employees raises some long-term issues for the City, including the adverse effect on the morale of fellow employees. • The fact that these settlements were made quickly and early in the litigation or pre-litiga- tion stages, with only the employees’ version of the circumstances publicly known, strongly implies that all of them were wrongfully terminated and made arbitrary victims of the “Stilwell/Paul Administration.” That conclusion, based on the body of evidence and documentation reviewed by the MCCGJ, is neither fair nor warranted. • Finally, the settlement process noted above indicates, in the MCCGJ’s opinion, a desire to quell political unrest rather than address serious employment issues. CONTRACTAWARDS Media reports and Carmel resident complaints concerning governance and administration of Carmel during the 2012-2014 period emphasized the belief that something was very wrong with how the City awarded and administered contracts for City services and supplies, with such asser- tions as the following (discussed in detail below): • Contract Splitting • Severing Relations with Local Vendors • Cronyism • Contract Value • Legal Counsel Issues While on occasion these reports and complaints questioned the role of the Mayor and City Coun- cil, the overwhelming ire was directed at Mr. Stilwell as City Administrator and Ms. Paul as Ad- ministrative Services Director. The assertions listed above formed one of the key grounds for citizen demands that the employment of Mr. Stilwell and Ms. Paul be terminated. The MCCGJ requested copies of the various contracts going back as far as 1984, including those about which the media and citizenry complained, and supporting materials such as requests for proposals, proposals, staff reports recommending contracts, City Council Resolutions approving contracts, purchase orders, invoices and payment records, and amending materials where appli- cable. While the City was cooperative, its files generally did not contain all the materials com- prising the contracts. Contract proposals and exhibits reflecting the scope of the work to be performed were missing on occasion, as were staff reports to the Council. There was no evidence of public bidding for contracts in excess of $25,000 as called for in the Carmel Municipal Code (CMC). Some contracts used a prior contract form but failed to use the name of the new contrac- tor. Copies of contracts executed by both parties were missing. In spite of these deficiencies, the MCCGJ believes that the materials provided by the City are sufficient to support the conclusions that follow. • ContractSplitting CMC Section 3.12.310 states: “No purchase orders involving amounts in excess of $25,000 shall be split into parts to produce amounts of $25,000 or less for the purpose of avoiding the provisions and restrictions of this Article.” The CMC does not define con- tract splitting but speaks in terms of splitting purchase orders into contracts. The media and citizenry complained primarily about three contracts, each initially not to exceed $25,000, issued to computer forensics expert Mark Alcock: -- Contract No. ASD-PCS-MA-001-2013 called for unspecified forensic technology in- vestigative services. The date of this contract is unclear. The copy provided by the City is dated July 23, 2013; however, other materials reviewed by the MCCGJ sug- gest that its original date was February 25, 2013. Invoices reflecting services in the February-May 2013 time frame were not provided. -- Contract No. ASD-PCS-MA-Sec-002-2013, dated May 5, 2013 called for the installa- tion and configuring of network routers and security devices, providing security de- vices, and providing security guidance and additional technology services as 81 necessary. The manner in which all of these contracts are numbered supports the con- clusion that contract 001 (a. above) preceded contract 002. -- Contract No. ASD-PCS-MA-Examiner-003-2013 dated June 19, 2013 covered the co- ordination of investigative activities with various enforcement agencies, serving as “forensic technology” to support various agencies, and additional technology services as necessary. On August 23, 2013 the City Council authorized amendments to both the May 5 and June 19 contracts to increase the amounts thereunder respectively to $43,500 and $60,000. There appeared to be a practice of allowing the consultant to overrun the contract amounts, followed by a “catchup” City Council-authorized contract amendment. The use of the word “investigative” in two of the three contracts lends some credence to the concern of contract splitting as well as the overruns calling for contract amendments. However, the CMC speaks in terms of splitting purchase orders, not contracts. The MCCGJ found no use of purchase orders to secure the services of this consultant. The probability is that under the circumstances confronting the City at that time and given the believed urgency in the need for forensic technology services, plus uncertainty as to the scope of forensic services needed, the action taken was warranted. In all events, the MCCGJ received credible testimony that Mr. Stilwell was given legal advice that the Al- cock contracts did not constitute contract splitting • SeveringRelationswithLocalVendors A prominent concern ofthe media and Carmel citizenry was their assertion that City ad- ministrators eroded the effectiveness of the City’s Community Planning and Building De- partment by closing out a long-standing contractual relationship with Carmel Fire Protection Associates (CFPA). By mid-2007 CFPA was principally represented by two re- tired long-term Carmel City employees who provided the same fire protection and build- ing plan-checking services to the City and to those general building contractors active within the City that they had provided as employees. Both were well regarded and popu- lar within the City administration and the local construction industry. The arrival of Mr. Stilwell and Ms. Paul brought a review of the City’s contracting prac- tices and scrutiny of large contracts. It became apparent that the City was not adhering to its public bidding obligation for contracts in excess of $25,000 and that services were being provided and paid for under expired contracts. The City provided the MCCGJ with copies of the agreements with CFPA going back to September 1, 2004 up to and including the last agreement in effect dated September 1, 2007. Although this agreement was for a two-year term ending August 31, 2009, CFPA continued to provide services under the 2007 agreement and the City continued to pay for such services through at least August 2012. In August 2012, CFPA drafted a renewal con- tract dated August 1, 2012 for a two-year term and sent it to Mr. Stilwell for processing. The City took no action to renew the CFPA arrangement, and in March 2013 Ms. Paul re- ceived input from the Community Planning and Building Department that the contract with CFPA was no longer necessary because the City of Monterey was providing some of the same services under a November 16, 2011 “Agreement to Provide Fire Services be- 82 tween the Cities of Monterey and Carmel.” Therefore Ms. Paul directed that there be no further business with CFPA. The MCCGJ found no documentation indicating that the services described in the CFPA contracts ever went out for public bid or that they were of such a special nature as to qualify for the exception to public bidding found in CMC Sections 3.12.140 and 160, which permits the City Administrator to utilize “competitive negotiation” where war- ranted. In terms of the City’s failure to use public bidding where local vendors were involved, the City also entered into eight agreements between June 2006 and December 2014 for con- sulting services covering destination marketing and public relations with Monterey and Carmel firms known variously as Anda/Burghardt Advertising and Burghardt/Dore Ad- vertising. Each of these agreements was for $100,000 or more (the average about $180,000) and they were usually for a one-year term. The records provided by the City did not include any indication that any of these agreements was a result of public bidding. The current agreement (No. 013-13-14) expires June 15, 2015. • Cronyism The media and Carmel citizenry identified the following contractual relationships as re- flecting “cronyism,” a not otherwise identified or explained term: -- The four contracts, with amendments, between the City and Public Consulting Group, Inc., (PCG) of Sacramento and its Vice President, Sally Nagy, for information tech- nology services especially in connection with the development of the City’s Strategic Information Technology Plan and Interactive Government Project. A fifth contract to implement the technology plan with PCG was pulled from consideration by the City Council in September of 2014 after public outcry, with the intent that a bidding process would be used; and -- The engagement of the Santa Barbara office of the law firm of Stradling, Yocca, Carl- son & Rauth, APC, to represent the City in employment law matters, including un- lawful termination litigation, and Public Record Act response issues. The City provided copies of the agreements between these two service providers. The history of the relationship between these two vendors and Mr. Stilwell and Ms. Paul was explored to the extent the persons interviewed were able to comment. Other than the prior (before 2012) presence of the vendors in the City of Santa Barbara while Mr. Stilwell and Ms. Paul were employed by Santa Barbara County, and an acknowledged working rela- tionship in Santa Barbara between Ms. Paul and Ms. Nagy some five years earlier, the MCCGJ found nothing to suggest any special relationship between Mr. Stilwell or Ms. Paul and either of these two vendors. The MCCGJ found nothing to suggest that Mr. Stil- well or Ms. Paul benefited economically from the City’s engagement of these two ven- dors. It is not uncommon for professional administrators to establish relationships with professional service providers and to call upon such providers for assistance in new cir- cumstances. Regarding the engagement of other attorneys from outside the area by the City Adminis- trator, specifically from Santa Barbara, the MCCGJ found no evidence of cronyism, as 83 charged by the local media and many City residents. Further, the MCCGJ questioned why Mr. Freeman, the City Attorney, was not involved in the selection of outside counsel. The question remained unanswered because the City denied the waiving of attorney-client privilege for the City Attorney. • Contract Value The four contracts with Public Consulting Group, Inc. (PCG) discussed above were also criticized on the ground that they were a waste of money as they produced little value. Based on materials provided by the City (which may not be accurate or complete), it ap- pears that the contracts in question, including overruns, called for the City to pay PCG a total of $269,460, of which $88,660 remains unpaid. While some of the services provided by PCG were for day-to-day IT support, the bulk of the services were for work performed in the development of the City’s Strategic Information Technology Plan and Interactive Government Project. The MCCGJ has been unable to identify any meaningful progress implementing this IT Plan, although witnesses have said that it continues to be a City Council goal. The usefulness and appropriateness of the IT Plan to meet the City’s needs would appear to be a wait-and-see situation, as the MCCGJ was unable to address the ac- cusation that the contracts produced little or nothing of value. • LegalCounselIssues Concerns regarding legal counsel revolve around three areas: the use of firms outside Monterey County, the services provided by local legal counsel, and the amount spent on outside counsel from 2012-2014. -- Securing legal services from firms outside Monterey County: The media and Carmel citizenry were critical of the City’s use of law firms located in Santa Barbara and Los Angeles during 2012-2014, and what they felt were excessive payments to such firms. The City provided the MCCGJ copies of the engagement agreements between the City and all law firms engaged by the City during the 2012- 2014 period, as well as their related billing statements. The MCCGJ’s ability to re- view the legal services provided during the period 2012-2014 was hampered by the City’s unwillingness to waive the attorney-client privilege, which would have allowed the MCCGJ to discuss with retained counsel more details concerning the nature of and need for services rendered. -- Local Legal Counsel: Donald G. Freeman, Esq. has been employed as the Carmel City Attorney continu- ously since February 1984. Based on records provided by the City, Mr. Freeman was included in the City’s retirement plan from 1984 to 2007. His latest open-ended Em- ployment Agreement for Legal Services became effective June 1, 2004 and provides for both “Ordinary” and “Extraordinary” Services: “Ordinary Services” include pro- viding legal advice and opinions to the Mayor, City Council and City Administrator in the regular course of City business covering such matters as administrative proce- dures, Council and Commission actions, and attendance at all regular Council meet- ings, as well as drafting and preparing ordinances, ordinary contracts and engaging in legal research necessary to properly advise and protect the interests of the City. “Ex- traordinary Services” include preparation of complex legal documents, representing 84 the City in any Court litigation, Court appearances for prosecution of City ordinances, eminent domain proceedings, labor negotiations, municipal bond and assessment pro- ceedings. The MCCGJ noted that the services to be rendered by Mr. Freeman, who in addition to his City employee duties also engages in the private practice of law, do not specifi- cally include assisting in employment termination matters, HR matters, contract re- view and compliance, or PRA response advice. Nor do the services to the City specifically involve him in the engagement and supervision of outside special coun- sel. The involvement of the City Attorney throughout the relevant time period was ques- tioned by the MCCGJ because there were many instances of the City’s turning to out- side counsel for employee terminations, PRA request reviews, HR matters, contract matters, and general counsel. In some instances, outside counsel was provided by firms outside the Carmel area, and by firms appearing to be previously known to the New Administration (Stilwell and Paul). Occasionally, Mr. Freeman acted as counsel on the above matters, and, as noted earlier, it is unclear if the City Attorney had a reg- ular procedural role in a defined list of City matters, or was “on call” when judged as needed. An interview with Mr. Freeman would have allowed the MCCGJ to better determine if cost-saving improvements could be made in this area, and also to determine more definitively if there was cronyism, as described in the citizen complaint. However, be- cause the City denied the waiver of attorney-client privilege, the MCCGJ recognized that such an interview would not offer any meaningful inquiry. -- Use of Outside Counsel: During 2012-2014 the City looked to outside special legal counsel for significant sup- port in employee termination matters, wrongful termination litigation, real estate liti- gation, Public Records Act requests and related litigation, as well as human resource issues. These services were not available from Mr. Freeman; the MCCGJ was in- formed that he did not desire to provide such services and encouraged the use of out- side special counsel. The data provided by the City covering the use of outside legal counsel included, in addition to the engagement agreements, invoices, purchase orders, and payment records. These additional materials did not appear to be complete in every case, how- ever the MCCGJ regards the materials as sufficiently complete to make the conclu- sions reasonable under the circumstances. The table below, reflects the approximate amounts paid by the City during the 2012- 2014 period to outside special counsel for the most-called-for special services: Public Record Act (PRA) requests, Employee Terminations, and General Employment Law advice, as well as the hourly billing rates. Attorneys’ Fees Total by Category 2012-2014 This analysis is an approximation because it is not clear if the City provided copies of all billing statements; the Stradling invoices covering general employment matters for the last Quarter of 2013 clearly include advice with regard to some terminated em- ployees. However, the MCCGJ believes that the billing statements that were provided support its conclusions as to the kind of services being rendered. The hourly rates charged by these firms are not out of line, ranging from $150/hr to $395/hr, with most of the work being done by associates in the $225-$280/hr range. The highest fees were charged by a partner with the Stradling Firm at $395/hr for work in the termination/litigation area Since 2012, the City has paid for outside legal advice and services for: ➛ General legal counsel (2 different firms) ➛ PRA requests ➛ General business and facilities ➛ Employment advice including training on harassment and discrimination, disci- pline, terminations, post-termination hearings, labor & employment topics & Skelly hearings ➛ The proposed events center project ➛ Potable water allocations ➛ Acquiring water rights ➛ Joint Powers agreements ➛ City’s right to provide advanced life support EMS ➛ The PG&E explosion of March 3, 2014 ➛ Negotiating and drafting the lease of Flanders mansion ➛ Defending suit brought by Flanders Foundation ➛ Government transparency ➛ Litigation settlement 86 The attorney invoices establish that Mr. Stilwell and Ms. Paul were doing their “due diligence” in the termination cases and seeking guidance at every turn. Had they been acting irresponsibly or vindictively, their attorneys would almost certainly have ad- vised against completing the adverse employment actions. While the MCCGJ ac- knowledges the significant dollar amounts spent on outside legal services, they were not, under the circumstances, unusual. The sum of $483,475for 2012-2014 compares favorably with legal expenses in the four prior fiscal years, as follows: 2008-2009 $612,940 2009-2010 463,402 2010-2011 358,502 2011-2012 452,277 PUBLIC RECORDSACT INQUIRIES A source of significant controversy was the area of PRA requests. In the late 2011 timeframe, these were handled very informally. There was no process for logging requests or recording what information was provided. There was also no structure in place to determine whether the infor- mation requested was actually a public record and whether it was proper to release it. It appeared that anyone could walk up to the window in City Hall, ask for a record, and it was provided. The new City Administrator addressed this issue. Processes were created by, or at the direction of, Mr. Stilwell to log and review PRA requests and properly edit them where required. With public attention focused on the City, requests increased in number, burdening City staff. As the threat of legal actions grew, requests swelled to the point where a timely response was almost impossible. Outside counsel and other advisors were brought in to assess and edit requests and relieve City staff of the additional workload. The money spent on outside assistance was widely and controversially publicized. This matter has been addressed by City Council Resolution 2014-059, dated August 5, 2014, Public Records Response Policy. CONCLUSION The 2014/2015 Monterey County Civil Grand Jury was asked by the Mayor of Carmel to review the City’s policies and internal controls and to make recommendations. In addition, a formal Citi- zens’ Complaint was filed requesting that the MCCGJ examine City governance and failed over- sight. This Report is as comprehensive as possible, given the constraints of time and resources, and the systematic lack of cooperation by the City. However it could not purport to address all the complaints, issues and problems of Carmel-by-the-Sea’s management and governance. FINDINGS Findings F1 through F6 apply to the time period prior to the hiring of Mr. Jason Stilwell in late 2011. F1. In the time period note above, City operations were undisciplined, as City policies were outdated, nonexistent or ignored. With several empty Department director positions, em- ployees worked hard to keep up and paid little attention to standard municipal procedures. F2. In the time period noted above, there were serious flaws and vulnerabilities in network system security, placing the City at risk financially and legally. F3. In the time period noted above, contracts were mismanaged with regard to public bidding, purchase order processing, and services provided with expired contracts. F4. In the time period noted above, the City Council was not provided with contract payment schedules or accumulated payment tracking reports. F5. In the time period noted above, the Human Resources process was mismanaged with re- gard to pay grades, progressive discipline, and proper staff training, and was lacking in leadership. F6. In the time period noted above, the Public Records Act request process was unstructured, noncompliant, and ad hoc. F7. The Mayor and City Council did not fully execute their responsibilities of inquiry and oversight. F8. Neither the Mayor nor the City Council members received any formal training or substan- tive orientation on the responsibilities of their positions. F9. The Mayor and the City Council members were more responsive to political pressure than to the need for effective governance. F10. Mr. Stilwell was a well-qualified City Administrator who recognized and diligently ad- dressed widespread City management problems and tried to implement shifting City Coun- cil priorities, maintaining a professional attitude in spite of external pressure and criticism. He may have avoided much of the upheaval surrounding his administration by having a clearer perception of the nature of small-town government and exercising a more thought- ful and measured approach to change. F11. Ms. Paul was an experienced Administrative Services Director who quickly recognized areas of mismanagement and risk for the City and implemented solutions within what she understood to be her areas of authority with due diligence and proper municipal procedure. Her decisive by-the-book actions and abrupt manner caused resentment among longtime employees and City residents, which may have been avoided with more sensitivity on her part to the City’s culture. F12. There was no credible evidence to support allegations of contract splitting, cronyism or any other wrongdoing under Mr. Stilwell or Ms. Paul. F13. The General Law/Weak Mayor structure was often misunderstood by Carmel citizens and the City Council. F14. The local media provided easy access for City employees to vent their side of a story when the City’s hands were tied by employee privacy restraints. F15. The governance and administration of the City is unduly influenced by the reportorial and editorial practices of The Carmel Pine Cone. F16. The position of City Treasurer is underutilized and so provides little benefit to the City. F17. The City Treasurer was isolated from any meaningful role in the contract/invoice disburse- ments and tracking system. F18. There was no evidence of any systematic review of contracts in excess of $25,000 by legal counsel as to form or content. F19. A significant amount of money is spent on outside counsel as it supplements the City At- torney position in numerous matters including but not limited to labor and employment concerns, public records requests, general business and facilities, joint powers agreements, municipal law, and miscellaneous lawsuits. F20. Historical averages of amounts spent on outside legal services over the past five years would support a full-time City Attorney and staff where such attorney would have experi- ence in contracts, employment matters, and Public Records Act requests, as well as munic- ipal law. F21. The City Council seriously failed to exercise its power of inquiry in its decision-making process regarding rehires, by excluding the City’s outside defense counsel from the process and by negotiating hasty settlements of claims in the early or pre-litigation stages, which precluded any meaningful scrutiny of these employment issues. RECOMMENDATIONS R1. The City require all elected officials to undergo The League of California Cities “New Mayors & Council Members Academy” formal training, for each new term of office. R2. The Mayor and City Council conduct a structured review of the City’s departments each month, to ensure proper oversight of City operations and more aggressive use of their power of inquiry. R3. The City immediately procure or upgrade to an appropriate IT System and secure the data network. R4. The City immediately hire an experienced Human Resources Director and fill all open po- sitions as quickly as possible. R5. The City define and utilize a formal, mandatory progressive discipline system to be consis- tently applied for all employee disciplinary matters. R6. The City require that all employees undergo formal training, with specific focus on job re- sponsibilities, City policy, and Municipal Code guidance for their specific positions. R7. The City immediately procure and implement appropriate, full-function financial manage- ment software. R8. The City review the contract awarding process to ensure that the Carmel Municipal Code provisions are being followed at departmental levels, and that where called for, public bid- ding is used. R9. The City review (or rewrite if necessary) the purchasing process, to ensure that the Carmel Municipal Code provisions are current, complete, and are being followed. R10. The City adopt a procedure whereby all major contracts are reviewed and signed off by the City Attorney and City Treasurer. R11. The City report periodic payments under contracts to the City Council, in a manner which reflects the total contract amount and total payments to date, as well as the current monthly payment. R12. The City establish a content list for City contract files and assure that such files contain (as applicable): bidding process compliance (RFP); vendor proposal and all attachments; legal review; staff summary report to the City Council; City Council resolution; and where there are contract amendments, all of the foregoing as appropriate. R13. The City enhance the role of the City Treasurer such that the position has responsibility in the day-to-day financial management, including tracking the status of all contracts, identi- fying payment overages, and reporting to the City Council. R14. The City make the City Attorney position a full-time City employee requiring meaningful experience in the areas of contracts, employment law, and Public Records Act requests, as well as municipal law. R15. The City Attorney manage the selection, and oversee the engagement of outside legal counsel, including the review and approval of their billings. RESPONSES REQUIRED Pursuant to Penal Code Section 933.05, the MCCGJ requests responses to all Findings (except F10, F11, and F14) and all Recommendations from the following governing body: • The City Council, Carmel-by-the-Sea 90 ATTACHMENT #1 Letter to the Monterey County Civil Grand Jury from Mayor Jason Burnett 91 ATTACHMENT #2 Carmel Municipal Code Section Internal Relations 2.08.070 A. Council-Administrator Relations. The City Council and its members shall deal with the ad- ministrative services and department heads of the City only through the City Administrator, ex- cept for the purpose of inquiry, and neither the City Council nor any member thereof shall give orders or instructions to any subordinates of the City Administrator. The City Administrator shall take orders and instructions from the City Council only when it is sitting in a duly convened meeting, and no individual Council member shall give any orders or instructions to the City Ad- ministrator. B. Departmental Cooperation. It shall be the duty of all subordinate officers, including depart- ment heads, the City Attorney, the City Engineer and the City Treasurer to assist the City Admin- istrator in administering the affairs of the City efficiently, economically and harmoniously. C. Attendance at Commission and Committee Meetings. The City Administrator may, and upon request of the City Council shall, attend all meetings of the Planning Commission, the Library Board, the Community and Cultural Commission, the Forest and Beach Commission, the Com- munity Activities Recreation Commission, and any other commission, board, or committee cre- ated by the City Council. At such meetings, the City Administrator shall be recognized and heard by the presiding bodies on all matters upon which the Administrator wishes to address such body. D. Appeals of Commission or Committee Decisions. Notwithstanding any other provisions of this code, and consistent with State law, the City Administrator may appeal any decision of any commission, board, or committee created or appointed by the City Council. The appeal shall fol- low the procedures established for other appeals, except that no fee shall be required. In making such appeal, the City Administrator shall have the same rights, privileges, and responsibilities as any other appellant. (Ord. 98-2 § 1, 1998; Ord. 77-22 § 1, 1977; Code 1975 § 234). EDUCATION A “NO EXCUSES” APPROACH TO ENGLISH LANGUAGE LEARNING IN MONTEREY COUNTY Photograph used with permission of www.audio-luci-store.it. 93 94 EDUCATION A “NO EXCUSES” APPROACH TO ENGLISH LANGUAGE LEARNING IN MONTEREY COUNTY SUMMARY The low educational achievement of our youth has been a concern in Monterey County for many years. Results of Standardizing Testing and Reporting (STAR)1published annually by the Cali- fornia Department of Education continue to show that with very few exceptions Monterey County students are underperforming and are not reaching minimal academic levels established by the State of California. By far the lowest academic performance in the County is found among the growing population of English Language Learners (ELL), who comprise more than 40% of the County’s K-12 public school population. These students consistently under- achieve, as they struggle to acquire the English lan- guage skills that will enable them to succeed in regular classrooms. The improvements in perform- ance by English Language Learners in Monterey County have been negligible for decades. The pre- dictable result for these students has been school Source: Monterey County Education Re- failure, chronic unemployment, and the likelihood ports to the Community. of crime. School districts in California operate autonomously for the most part, but they are assisted in a variety of ways by the County Offices of Education (COE). For example the COE are in the po- sition to provide ELL professional development/training, mentorship, and services for their school districts that help create and support robust ELL programs. It was not evident to the Mon- terey County Civil Grand Jury (MCCGJ) that the Monterey County Office of Education (MCOE) has done all it can in the ELL area. To verify this conclusion, the MCCGJ met with administra- tors and staff members at MCOE, some school district administrators and board members in Monterey County who use MCOE services, and administrators at other County Offices of Educa- tion in the state whose standout leadership and passionate commitment to ELL success generate positive outcomes for their students. Because our students’ ability to learn English impacts not only their own academic and work- place futures but also the economic and social well-being of Monterey County, the MCCGJ fo- cused its investigation on how MCOE can strengthen its role in helping school districts bring the 1 STAR was replaced by the California Assessment of Student Performance and Progress (CAASPP) in January 2014. County’s 30,000 ELL students to a level of English proficiency that will give them the chance to be successful. Monterey County’s English Language Learners will be among our future leaders, and we need to see that they get the education they deserve. The challenges—poverty, parent illiteracy, number of diverse cultures and dialects, geographic spread of the County, lack of funding—are admittedly formidable, but clearly real improvement is possible. The time for excuses by MCOE, by the County Board of Education, by school dis- tricts, and by the citizens of Monterey County is past. We need a “no excuses,” focused approach to English Language Learning in every school in our County. BACKGROUND Monterey County is divided into 24 independent K-12 school districts that include 134 schools serving 74,000 students. The districts are governed by locally elected school boards and adminis- tered by superintendents. School district sizes range from the largest with nearly 14,000 students to districts with only one school and just over 100 students. Monterey County is an area of extreme cultural diversity that poses a significant challenge for public education. The California Department of Education reported that in March 2014 Monterey County had 30,608 ELL enrolled in the public K-12 school system. Ninety-five percent of these students are Spanish speaking, and many are not literate in their own language. In some districts the percent of ELL exceeds 85%. No Monterey County school district with an ELL population of over 30% has met the state’s minimum Academic Performance Index (API) standard,2and such districts typically are also lacking all-important parent involvement as well as full awareness and participation by the local school boards in prioritizing English Language Learning. BARRIERS TO ELL SUCCESS IN MONTEREY COUNTY The MCCGJ was interested in why so many English Language Learners in our school districts are not meeting minimal levels of proficiency needed to succeed in school and work. Two meas- ures—the state API Standard and the Federal Academic Yearly Progress (AYP) Report—show that schools and districts in Monterey County with significant numbers of ELL universally have not met established targets.3 The MCCGJ learned that in Monterey County the biggest barriers to English learning success are: (1) the large numbers of migrant and non-English speaking families, which can overwhelm a school district’s ability to respond effectively; (2) the presence of all-Hispanic enclaves in the County (with primarily US-born individuals) in which families can live and work without the need to learn English; (3) lack of parent education and literacy; (4) poverty; and (5) the lack of basic life skills, life experiences and opportunities that poverty brings. Until 2014, Monterey County used the state’s Academic Performance Index (API) as a measure of aca- demic performance and improvement, with a scoring range from 200–1000 and a statewide minimum target of 800. The CA Board of Education is developing a new measure that will replace API. The MCCGJ is limited by statute in its investigation of education to operational procedures, methods and systems. Explicitly prohibited are investigation of substantive policy concerns and curriculum. Because a new state funding model that has expanded the autonomy of school districts prevents MCOE from being able to mandate specific ELL programs in school districts, it is even more im- portant that the local school district leadership and the local community jointly desire positive outcomes. Competent local school boards must be elected and trained. The MCCGJ noted that current local school boards are not necessarily aware of the importance of ELL programs or the resources needed to overcome the barriers. The investigation revealed other challenges to ELL success, such as the geographical spread of the County, lack of widespread communication among districts about successful strategies, inad- equate access of students to computers (particularly at smaller schools with limited budgets), and lack of confidence by most districts interviewed in the support offered by the County’s Office of Education. The MCCGJ found that although MCOE has an in-house ELL specialist position (currently vacant) and provides some limited ELL professional development activities for school districts, its support consists primarily of advisory services using a “fee for service” model when school districts request its assistance in the ELL arena. RECENT CHANGES IMPACTING EDUCATION IN MONTEREY COUNTY Common Core Standards: In 2013 California adopted new “Common Core State Standards” (CCSS) intended to develop and measure the higher order learning skills of understanding, ap- plying, analyzing, and evaluating. Reaching these standards requires new methods of teaching and learning and is a special challenge for ELL, who struggle with the basics of language. New testing based on CCSS was administered for the first time in spring 2015. The testing was done on computers, another challenge for some school districts whose students—including ELL— have limited access to technology. Local Control Funding:In 2014, following six years of budget cuts in California public schools, the state instituted a new school-funding model called Local Control Funding Formula (LCFF). Under this mandate each school district in the county is required to develop a Local Control Accountability Report (LCAP) that outlines its strategic plan of required resources and services that will serve the unique requirements of their students. Once the LCAP is prepared, approved by MCOE and submitted to the state, schools receive a base amount of funding. In ad- dition, districts with high percentages of disadvantaged students receive supplemental funding. This funding model gives local school districts unprecedented control and great latitude in how they may use LCFF funding in improving student performance. Since many schools in Monterey County qualify for the supplemental funding, the new LCFF is an opportunity for “game-chang- ing” strategic improvement for English Language Learners. ROLE OF MONTEREY COUNTY OFFICE OF EDUCATION The educational hub in Monterey County is the Office of Education, which is run by an elected County Superintendent of Schools who reports to a five-member elected Board of Education. Like other California COE, MCOE performs a variety of state-mandated compliance and other functions under the direction of the California State Superintendent of Schools, including: • Providing assistance to districts and schools with the implementation of statewide legisla- tive mandates and programs; 97 • Exercising AB-1200 statutory oversight of school district fiscal operations including ap- proval of districts’ annual budgets; • Offering support services to the districts that include credentialing, professional develop- ment, teacher recruitment, and instructional services; • Administering separate educational programs for special student populations; • Monitoring and reporting on all aspects of low performing schools; and • Ensuring school district compliance in a variety of areas. ROLE OF MONTEREY COUNTY BOARD OF EDUCATION The Monterey County Board of Education oversees the Monterey County Superintendent When students fail to learn English they of Schools in establishing the direction and typically show poor academic priorities for the County Office of Education performance and low self-­‐esteem that, through its budgetary determinations and lead- unfortunately, may lead to gang ac9vity. ership to support the success of public educa- And educa9onal staff member noted, tion. A primary responsibility of the Board of “These are the students who predictably Education is to approve the curriculum and end up in our jails.” maintain accountability for student learning and safety in schools and programs operated by the County Office of Education. Education Code Section 1040 requires the County Board of Education to adopt rules for its own governance and keep a record of its proceedings, approve annual budgets of the Superintendent of Schools and review the report of the annual audit. Because the Board of Education has been granted fiscal independence by the Board of Supervisors (BOS), the annual budgets do not need BOS review. The Board of Education also has a statutory duty to hold appeal hearings for stu- dents expelled by local school districts. Additionally the Board may adopt rules governing the administration of the COE and perform other non-mandated duties. INVESTIGATIVE METHODOLOGY The investigation of ELL student success involved multiple avenues of inquiry including: • Interviews: -- Monterey County Superintendent of Schools -- A Monterey County Board of Education member -- MCOE department and administrative staff members -- Monterey County school district administrators -- Monterey County school district board members -- County Office of Education superintendents in other California counties • Evaluation: -- MCOE Curriculum Leadership meeting -- Monterey County Leadership Summit agenda -- MCOE website 98 • Research and Review: -- Performance levels of all Monterey County school districts, including overall API scores, ELL API scores, and ELL Proficiency levels in English and mathematics, using California Office of Education databank, DataQuest (Refer to Glossary) -- Best practices in teaching and learning for English Language Learners (Appendix A) -- Budgets for selected schools and MCOE departments and administrative offices -- English Learner Master Plans of selected school districts DISCUSSION Despite the tireless efforts of many teachers and school administrators throughout Monterey County, individual school districts have produced uneven ELL achievement results. The MCCGJ was able to identify selected districts making good progress in ELL education and other districts having high percentages of students who never achieve English proficiency throughout their 11- year tenure in the educational system (classified as a long-term English learners). These disparate results are a product of the strategies, resources, and determination of local districts working on their own. There seems to be very little collaboration and sharing of ideas, resources, and strate- gies among Monterey County school districts. The one common factor for all, however, is the Monterey County Office of Education, which is in a unique position to foster relationships that can benefit allEnglish Language Learners and not just those who are lucky enough to be en- rolled in the right districts. The following discussion will address four topics: (1) Rigorous Academic Standards and Per- formance Accountability, (2) Communication Portal for Countywide Schools and Districts, (3) Professional Development/Training in English Language Learning, and (4) MCOE Organiza- tional Support for ELL Services. These are areas in which MCOE can provide support to individ- ual school districts and bring consistency to their efforts. Each area describes what is currently being done at the Monterey County Office of Education and can be done to further support the English Language Learner in our County. RIGOROUSACADEMIC STANDARDSAND PERFORMANCEACCOUNTABILITY Monterey County’s ELL performance levels are discouraging for our com- munity. By third grade, only 19% of ELL students who start in kindergarten in Monterey County schools reach the English proficiency that is needed to participate in academic work in Eng- lish.4The other 81% of English Lan- Source: California Department of Education, DataQuest, CELDT guage Learners (long-term English Annual Assessment. learners) lag behind their classmates and many never reach English proficiency throughout their time in school. A former County Su- 4 See 2014-2015 Monterey County Office of Education “Report to the Community,” p. 5. 99 perintendent commented, “If children haven’t learned English by thirdgrade, we know they’re in trouble…and it’s our fault.” When students fail to learn English, they typically show poor aca- demic performance and low self-esteem that, unfortunately, may lead to gang activity. An educa- tional staff member noted, “These are the students who predictably end up in our jails.” The following discussion outlines how the development of strategies that focus on standards, ac- countability, and best practices can help focus learning achievement for the English Language Learner. LCAPs that Incorporate ELL Standards and Strategies The newly state mandated Local Control Accountability Plans (LCAP) developed by local school districts are so far producing uneven results regarding ELL academic achievement in Monterey County school districts.Because the California Department of Education has yet to establish firm standards for these plans, the County Offices of Education—including MCOE—have the free- dom to work with their school districts to develop and implement their own countywide stan- dards that go beyond mere compliance. Some COE have already done this, but MCOE has not. MCOE administrators have also expressed an interest in developing ELL resources for county- wide use; however, to date this has not been accomplished. The COE interviewed by the MCCGJ all provide major guidance and support to districts in de- veloping their LCAP, sending teams to the school districts in advance and helping districts in- clude ELL best practices in their plans. Their help goes far beyond the required compliance role of reviewing and approving district LCAP before they are submitted to the state for funding. These COE promote the practice of using the LCAP as a district’s working strategic plan and of using the LCAP to define a district’s professional development needs and practices. English Proficiency Standards and Measurement Several interviewees noted the importance of using frequent assessment to know immediately when a child is ready to transition to a regular classroom. The California English Language De- velopment Test (CELDT) identifies students who are English Language Learners and determines their level of proficiency and progress. Based on results from the CELDT and other measures, students may be reclassified as Fluent English Proficient (FEP) and thus allowed to move to classes delivered in English only. Students who are assessed for their English learning progress only once a year may miss a window of opportunity to be placed in a regular classroom. Ongoing assessment of ELL students is time-consuming and costly for a district, but it clearly pays divi- dends in student advancement. ELL Best Practices The MCCGJ identified many state and national best practices (see Appendix A) that have been tested to show that they are creating positive outcomes for ELL students. Some school districts are using these. The MCCGJ also identified several local districts that have “pockets of educa- tional excellence” where a top-down commitment that originates with the school district superin- tendent or a school principal is leading innovative strategies and better ELL outcomes. There is 100 an important role for MCOE to play in regularly disseminating this information and sharing suc- cessful strategies countywide. A commitment that reaches down to every level to provide a consistent, determined, “no ex- cuses” approach to English Language Learning was cited by most interviewees as vital to ELL success. Monterey County school districts with this dedication stand apart in key ways. For ex- ample, their school boards have supported the district superintendent in prioritizing English lan- guage professional development for all content area teachers who have transitional English learners in their classes, not just for those who teach ELL classes. Some have looked outside Monterey County to find and emulate proven English language programs, and some bring ex- perts from throughout California to work with their teachers. (One administrator took carloads of the district’s board members, administrators and teachers to sit in classrooms of a school in an- other county known for notable English learning success.) These districts hold themselves accountable to the goals in their Local Control Accountability Plans (LCAP). They also benchmark their performance against proven successes elsewhere in California. Some districts with the largest ELL populations emphasize the hiring of teachers pri- marily from the local community, so they can more successfully engage non-English speaking families in their children’s education. Although the MCCGJ’s confidentiality mandate prevents listing which districts, schools and per- sonnel were interviewed, we have used observations and information from interviews as well as research in the field to compile a list of ELL “evidence-based”5best practices mentioned above (see Appendix A), including some that school districts would like to use if funding permitted or if MCOE were able to negotiate group discounts with publishers of desired ELL curricula. Other less formal but successful practices that surfaced in the investigation included hiring language coaches to develop daily individualized lesson plans based on a student’s level of comprehension of a particular class topic the day before, or having teachers speak only English to children be- fore and after school, at lunch, and on the playground. COMMUNICATION PORTALFOR COUNTYWIDE SCHOOLSAND DISTRICTS The Monterey County Office of Education is located in Salinas, California and serves all public schools within its 3,771 square mile service area. Given this geographically extensive area, com- munication to all districts is a challenge. School districts located closer to the county office seem to be more connected than those located in the southern, most rural parts of the county. “Communication is our lifeblood,” noted one County Office of Education Superintendent whose highest priority is to listen to what the school districts need and find ways to support those needs. Several strategies were noted that fostered two-way communication throughout the various coun- ties in the state that included: (1) using a bottom-up approach for frequent meetings with the school districts where the districts set the agenda, and lead and conduct the meetings; (2) offering a robust website that highlights best practices, grant opportunities, and professional development activities; (3) working closely with each school district in developing Local Control Accountabil- 5 Evidence-based practices are those that have evolved from the conscientious use of best evidence from systematic research using sound methodology. 101 ity Plans that incorporate sound, evidence-based strategies for ELL success; and (4) providing opportunities for all stakeholders (i.e. teachers, administrators, parents, staff members, students, board and community members) throughout the county to gather and share their ELL experi- ences. Bottom-up Communication Approach There was no evidence to suggest that MCOE encourages bottom-up communication to listen and learn about the needs of local English Language Learning programs from frontline educators and administrators. MCOE seems to use a top-down communication approach that is effective when dealing with their primary, mandated focus on state compliance issues but does little to bring area school districts together to share efforts on effective ELL strategies. Where other successful county offices of education have regular, school district-led functional area meetings (administrative staff, teaching coaches, financial, etc.) as a norm, frequent meet- ings specifically focused on English Language Learning could not be identified in Monterey County. MCOE does bring senior district administrators together on a regular basis; however, the main focus of these meetings is on state compliance and reporting issues. The newly launched Curriculum Leadership meeting offered by the MCOE Educational Services Department shows some promise in sharing best practices. These meetings, although currently infrequent, are hosted at different County schools where administrators learn about new programs and strategies of- fered in their districts. In other counties interviewed it was found that ELL specialists typically work closely with the school districts to develop their internal ELL plans by sharing ELL best practices and facilitating working groups with curriculum and instruction. In Monterey County, individual schools and districts can request ELL consulting services that are provided by an MCOE specialist for a fee. It appears that there is no proactive diagnostic approach to soliciting input about the ELL needs of school districts that provides opportunities for County districts to share, engage, empower, and partner to leverage limited resources. Website The MCOE website contains a quantity of information but lacks any English Language Learner resources or best practices that could be accessed by school districts. The districts seem to be “on their own” to locate and fund resources that can assist their ELL programs. Development of Local Control Accountability Plan MCOE provides a series of workshops for school districts in developing Local Control Account- ability Plans that include a plan for English Language Learning. The focus of these workshops seems to be the compliance requirements of the report (i.e. inclusion of mandated sections, nec- essary wording, etc.), and not necessarily effective strategies. The MCCGJ found no evidence that MCOE works closely with individual districts to discuss viable plans that could best serve their English learner populations. This is especially true for districts located in the southern, most rural portions of the County where access to MCOE services is severely limited. Stakeholder Opportunities to Share ELL Experiences There was no evidence to suggest that MCOE provides opportunities for stakeholders (school boards, parents, students, staff, community members, etc.) of the County to share their experi- ences with ELL education. It is widely recognized that these ELL support groups cannot be ef- fective if they don’t know or understand what they can contribute. The Monterey County Board of Education offered a Leadership Summit for the first time in 2014 addressing stakeholder con- cerns; however, English Language Learning was not included on the agenda. PROFESSIONALDEVELOPMENT/TRAINING IN ENGLISH LANGUAGE LEARNING Virtually all Monterey district school administrators interviewed noted that the most critical com- ponent to the success of the English Language Learner is a passionate and well-trained teacher who sets high expectations for all students. In addition, the various stakeholders that influence and support the English Language Learner—including parents, administrators, school staff mem- bers, community members and school board members—must work in tandem with these teachers toward achieving the common goal of ELL success. Given the changes in education and the chal- lenges our English learners face, it is imperative that all these educational players are knowl- edgeable and continually informed. The MCOE Educational Services Department is tasked with providing professional development opportunities throughout the County. The following discussion will address what is needed to as- sure that our teachers and school stakeholders are provided quality, timely, accessible, and af- fordable professional development opportunities to support their English Language Learners. Quality Learning Experiences The workshops, trainings and special programs offered by MCOE are often not well subscribed. A repeated theme from the districts interviewed was that they were less interested in attending a workshop given by an MCOE staff person than hearing about proven strategies from outside ex- perts with documented success. Timing/Scheduling of Training All the COE interviewed by the MCCGJ plan their professional development calendars a year in advance, modifying offerings as needed by the districts. This gives teachers time to plan their schedules. Very few ELL training workshops have been scheduled at MCOE over the past year, and the workshop schedule appears to be developed one month at a time. Accessibility Given the vast service area of the MCOE, it is very difficult for schools in southern parts of the County to take advantage of trainings, since most are offered at the Salinas location. Even when distance is not a factor, pulling teachers out of class and paying for substitutes is a costly and far from ideal solution for large-scale professional development. Asking teachers to attend training in the evenings or on weekends is equally unsatisfactory. For these reasons, some successful COE have adopted alternative venues such as online training to provide professional develop- 103 ment services. One County Superintendent refused to close a critically important technology pro- gram that lost its state grant funding and continues to support this online program with COE gen- eral funds. “We would be hard pressed to provide the rich support we do without it,” he said. MCOE does not offer online professional development programs nor does it offer any other alter- native delivery systems other than the traditional, face-to-face method. Affordability For most districts, the cost of MCOE-hosted workshops was less a deterrent to attending than the questionable quality of the offerings. On the other hand, bringing in high quality experts in the field was expensive for individual school districts. Hosting educational experts of proven, evi- denced-based ELL methods and programs on a countywide basis could help districts reduce pro- fessional development costs and provide the quality that’s needed in this ever-changing field. Stakeholder Training Finally, all stakeholders in the ELL environment need training and the opportunity to share best practices. One county hosts an ELL summit every year that is well attended by all county stake- holders, giving them a venue to learn how to become an effective support to the English Lan- guage Learner. Although there are agencies in Monterey County that provide training workshops for stakeholders such as school boards and parents, the MCCGJ could not determine that any provide information about their roles in the ELL process. MCOE ORGANIZATIONALSUPPORT FOR ELL SERVICES One of the challenges to ELL success in Monterey County may stem from the organization of the Monterey Office of Education itself. MCOE is an exceptionally large bureaucracy that is respon- sible for running or supporting many programs and services throughout the County, only one of which is English Language Learning. It is understandably easy to lose focus on any one of the many educational needs; however the following discussion identifies five areas of focus for MCOE that can make a difference in ELL education. English Language Specialist Although MCOE content specialists (e.g., those with focused knowledge and expertise in an edu- cational area such as math and English) have a minor responsibility in ELL teaching and learn- ing, there is one specified position for an ELL Specialist, which is currently vacant. This position is vital for MCOE to fulfill its role in providing leadership, offering professional development, and facilitating communication to develop partnerships with the 24 school districts. Without the focus this position can bring to the table, problem solving and the development of strategies that involve all the stakeholders known to impact ELL success cannot be realized. Budget Support A comprehensive job description for the ELL Specialist position has been developed at MCOE; however, there is no operational budget beyond salary for the activities in the job description. Lacking one or more consistent and well-funded ELL Specialist(s) at the County level results in school districts having no specific support, access to expert resources, or ELL mentorship. Grant Writing The most successful COE actively seek outside sources of funding for important programs that benefit the school districts, and their grant writers regularly advise and assist school districts in competing for their own grants. Local school districts in Monterey County also have a significant need for grants assistance to identify and be competitive for outside funding for unfunded critical needs such as technology, textbooks and teaching materials for Common Core, the purchase of ELL “best practice” curricula, expert ELL consulting assistance, or special programs for English learners. Current administrators at MCOE provide limited help with grants as time permits, but no professional grant writer(s) is on staff to offer expertise, guidance and support. The MCCGJ did not gain the impression that this is a priority for MCOE. Leveraging Resources Another MCOE staff function that potentially could make an inestimable difference to school districts is the brokering of group discounts with publishers for ELL “best-practice” curricula and resources. Few school districts in the County have been able to afford expensive evidence-based ELL programs and curricula, even though these have demonstrated success for English learners. A proactive approach by MCOE might identify opportunities to secure proven resources for in- terested districts at affordable rates. Organization Audit Under the new Local Control Funding model, the scope of services that explicitly fall to County Offices of Education has been reduced as some of these responsibilities have passed to local school districts. An organizational audit by MCOE would determine optimal staffing levels at the County office that reflects this new scope of services. An audit might find that there is a greater need for staffing in the areas above than in previously needed areas. LOOKINGAHEAD The MCCGJ believes that the Monterey County Office of Education can play a more effective leadership role in fostering two-way communication with school districts, developing a mecha- nism to share best practices, shaping ELL training and services around the expressed needs of the school districts, regularly bringing in veteran outside experts as resources, looking for economies of scale and partnering with districts to seek solutions that can best be implemented on a county- wide basis, finding ways to encourage local school board member training, providing extra sup- port to small districts, helping districts engage parents and other stakeholders, and other measures. With the recent changes in school funding, academic standards, standardized testing, and school accountability, Monterey County Office of Education has a window of opportunity to make the 105 most of these changes to meet the challenge and give English Language Learners the tools to lead productive lives. The findings that follow highlight the current state and challenges of educating English Lan- guage Learners in Monterey County. The recommendations outlined below offer some concrete steps that can be taken now to ensure that these students are not forgotten. FINDINGS F1. English Language Learners (ELL) in Monterey County perform far below the minimal ac- ademic standards established by the state and continue to be unprepared for college or the workplace, largely due to inadequate progress in learning English. F2. Monterey County school districts have developed local control accountability plans (LCAP) that are producing uneven results in ELL academic achievement. F3. The training and support MCOE offers to school districts in development of their LCAP centers primarily on achieving compliance with state requirements and does not include working together to create quality standards or ELL strategies that can produce positive re- sults. F4. There is an important role for MCOE to play in regularly disseminating ELL best practices and sharing successful ELL strategies countywide. F5. There was no evidence to suggest that MCOE promotes two-way communication and a partnership approach with school districts that encourages sharing of information and re- sources or that solicits frank input about the needs of local English Language Learning programs from frontline educators and administrators. F6. Although the MCOE website contains a variety of information, it is completely lacking in English Language Learner resources and best practices. F7. There was no evidence to suggest that MCOE or any other professional organization pro- vides opportunities for stakeholders (school boards, parents, students, staff, community members, etc.) to learn about their role and responsibilities in supporting the English Lan- guage Learner. F8. The workshops, trainings and special programs offered by MCOE are often not well sub- scribed by school districts. F9. The relatively few ELL professional development trainings that are offered by MCOE do not appear to be scheduled well enough in advance to allow for planning by school district personnel. F10. It is very difficult for schools in southern parts of the county to take advantage of MCOE trainings, since most are offered at the Salinas location. F11. MCOE does not offer online professional development programs/training or significant other alternative delivery systems to increase accessibility and participation. F12. Quality professional development provided by experienced ELL experts (generally not MCOE staff) and focused on proven evidenced-based methods was identified as a need by County school districts. F13. MCOE has one specified position for an ELL Specialist that is currently vacant. F14. There is no operational budget beyond salary for the activities listed in the MCOE ELL Specialist job description. F15. No professional grant writer(s) is on staff at MCOE to offer expertise, guidance and sup- port to school districts. RECOMMENDATIONS All the following recommendations are for action by Monterey County Office of Education, under the direction of the Monterey County Board of Education: R1. Work with school districts to create a set of ELL standards for use or reference in the de- velopment of districts’ LCAP, to make it easier for them to set and achieve ELL goals. R2. Act as a resource for small school districts located in rural, distant areas of South Mon- terey County in meeting and exploring how they can work together to make most efficient use of shared ELL and other resources. R3. Establish a satellite office in South Monterey County to increase accessibility and commu- nication of County programs and services by September 2016. R4. Take on the role of compiling and disseminating successful ELL practices and perform- ance measurements around the County. R5. Publish best practices and resources for all ELL stakeholder groups on the MCOE or other dedicated website by September 2016. R6. Establish the regular practice of offering forums that bring together school district ELL personnel with their counterparts at other districts, so they can share information, explore solutions to similar problems, and share strategies and practices by January 2016. R7. Sponsor and facilitate an annual stakeholder (i.e. representative parents, boards, students, administrators, support staff, etc.) “Summit” to help each group define its roles and re- sponsibilities that influence the English Language Learning process starting in September 2016. R8. Adopt or develop an online program of professional development workshops to increase access for teachers unable to attend on-site classroom training by June 2017. R9. Begin a regular practice of soliciting input from all County school districts to determine professional development needs as a basis for creating an annual calendar of ELL educa- tional services, workshops, and activities by September 2015. R10. Make a commitment to bring the best evidence-based state and national programs and ex- pert speakers on English Language Learning for County professional development activi- ties. R11. Immediately fill the English Language Learning specialist position that has been recently vacated. R12. Establish an operational budget for the MCOE English Language Learning specialist to carry out the full scope of duties that support professional development, open communica- tion and cooperation among all County school districts by September 2015. R13. Hire a full-time grant writer to consistently identify grant opportunities and develop grant applications to raise additional funds in support of district ELL programs. R14. Benchmark and evaluate County ELL practices and services against practices used by other COEs that are successfully serving ELL stakeholders beyond state compliance re- quirements. R15. Perform an organizational audit to determine optimal staffing levels at the Monterey County Office of Education that reflects the diminished scope of required COE services provided under the new Local Control Funding model. RESPONSES REQUIRED Pursuant to Penal Code section 933.05, the Monterey County Civil Grand Jury requests re- sponses to all Findings and Recommendations fromthe following governing bodies: • Monterey County Office of Education • Monterey County Board of Education 108 GLOSSARY Academic Performance Index (API): A measurement of academic performance and improve- ment of individual schools in California. API scores ranges from a low of 200 to a high of 1000. The statewide API performance target for all schools is 800. API has been discontinued as of March 2014. Academic Yearly Progress (AYP): Part of the federal No Child Left Behind Act, AYP indicates whether a school or district has improved a required amount each year, as defined by the Califor- nia Department of Education. An important component of AYP is the percentage of students meeting or exceeding proficiency levels in English and Math. California Assessment of Student Performance and Progress (CAASPP): Established on Jan- uary 1, 2014, the CAASPP System replaced the prior Standardized Testing and Reporting (STAR) Program, which became inoperative on July 1, 2013. CAASPP will focus on achieve- ment using newly adopted Common Core Standards. California English Language Development Test (CELDT): a test administered to any student from grades K-12 who has a home language other than English. The CELDT identifies students who are English learners, determines their level of English proficiency, and assesses their progress toward acquiring English proficiency. Common Core State Standards (CCSS): Educational standards describe what students should know and be able to do in each subject in each grade. In California, the State Board of Education decides on the standards for all students, from kindergarten through high school. DataQuest: A data portal hosted by the CA Department of Education that provides reports about California’s schools and school districts. Data are presented for easy comparison among schools, districts and counties and includes information about school performance indicators, student and staff demographics, expulsion, suspension, truancy and a variety of test results. English Language Learner (ELL): a person who is learning the English language in addition to his or her native language. Fluent English Proficient (FEP): Students who are fluent English proficient are those whose primary language is other than English and who have met the district criteria for determining proficiency in English. Local Control Funding Formula (LCFF): The LCFF budget package replaces the previous K- 12 finance system with a new funding formula. For school districts and charter schools, the LCFF creates base, supplemental, and concentration grants. For county offices of education (COE), the LCFF creates separate funding streams for oversight activities and instructional pro- grams. A supplemental grant equal to 20% of the adjusted base grant is targeted to disadvantaged students. Targeted students are those classified as English Language Learners (ELL), students el- igible to receive a free or reduced-price meal, foster youth, or any combination of these factors (unduplicated count). Local Control Accountability Plan (LCAP): A critical part of the new LCFF, the LCAP is a mandated annual strategic plan prepared by each district in California to set forth the district’s vi- sion for students, goals and specific actions to achieve the goals. Eight required priority areas in- clude (1) implementation of Common Core State Standards; (2) improving student achievement 109 and outcomes along multiple measures (including test scores, English proficiency and college and career preparedness) and six other priority areas. Districts must engage parents, educators, employees and the community to establish these yearly plans, which must be accepted before LCFF funding is released to the district. Standardized Testing and Reporting (STAR): Each spring, students in grades two through eleven take a STAR test, which measures how well schools and students are performing in math, reading, writing, science, and history. In 2014 STAR was replaced with California Assessment of Student Performance and Progress (CAASPP).