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El Dorado County Grand Jury • 2000-2001

Criminal Justice Committee(PDF, 1mb)*

Published: January 28, 2000 21 pages
View PDF View Full Original

Findings 45 findings

F1
The then Undersheriff did not attend work from January 28, 2000, until his retirement on May 5, 2000.
F2
Section 1006 of the El Dorado County Salary & Benefits Resolution for Unrepresented Employees states, "sick leave taken in excess of eighty hours may be supported by a Doctor's excuse".
F3
Payroll records indicate that the then Undersheriff was paid for two hundred (200) hours of sick leave form January 28, 2000 to May 5, 2000. The action described in Finding 3 resulted in the "use" of accumulated sick leave for
F4
which the then Undersheriff would not have been entitled to receive payment at the time of his retirement.
F5
The then Undersheriff was not sick during this period. The affected employee was entitled to receive payment for 504 hours of sick leave
F6
upon retirement under Section 1009 (A) The El Dorado County Salary & Benefits Resolution for Unrepresented Employees.
F7
The affected employee received payment for 504 hours of sick leave upon his retirement.
F8
Resources Department, is to accept the transmittal of a Personnel Payroll Form ("PPF") as notice of authorization by a department head of the assignment of an employee to an acting position. A PPF is a form that notifies HRD of a change of employee status. For payroll purposes that change is noted on the form by entry of an alphanumeric code.
F9
The use of Personnel Payroll Forms is inadequate to assure compliance with the County's acting and/or overfill policies and procedures for the following reasons: a. Personnel Payroll Forms are completed and forwarded by a staff employee within the Department and fail to establish a record that the department head either knows of, or has authorized, the reassignment. b. Personnel Payroll Forms are not necessarily submitted to Human Resources Department prior to the employee's commencement of work in the higher class position; instead, they must only be submitted to HRD in time to authorize compensation for the pay period worked in the higher classification. c. The reassigned status created by the Personnel Payroll Forms is permanent and open-ended, allowing a department head, at the end of the six-month period, to ignore the County's requirement for reauthorization of the affected employee's compensation for working in the higher class. d. Use of Personnel Payroll Forms is inappropriate for reauthorization of acting positions, as PPFs are designed to document a change in employee status, while the required reauthorization would in fact retain the existing status of the effected employee. e. Use of Personnel Payroll Forms fails to provide the County protection against a department's inadvertent or intentional failure to notify Human Resources Department either that the employee is no longer performing work at the higher class or that the authorization for the particular position no longer exists. In effect, an employee, once elevated in pay, could continue to be paid at a higher compensation rate indefinitely, whether or not (i) the employee either continued to work in the higher classification or (ii) the assignment to which the employee had been temporarily elevated had subsequently been filled by another employee. (See F15.)
F10
Resolution Section 501. Authorized Personnel states in part: "Except as otherwise provided by law, the Board of Supervisors shall, by resolution, specify the number and classification of all positions authorized for each department of the County. ... All additions, deletions or modifications to the Authorized Personnel Allocation Resolution shall be made by amending Resolution. No person shall receive any compensation for services as a County employee whose employment is not authorized by the Authorized Personnel Allocation Resolution,..." The Grand Jury believes "all positions" means all positions. In February 2000, the Sheriff assigned an employee to the position of Undersheriff in
F11
an acting capacity because of the extended leave status of the then regular Undersheriff.
F12
In May 2000, the regular Undersheriff retired. This action left the Department with one Undersheriff performing in an acting capacity.
F13
In August 2000 the then acting Undersheriff had been in an overpay position for six (6) months. No reauthorization was written and forwarded to Human Resources Department by the Department.
F14
On October 1, 2000, the Sheriff appointed a second employee to the permanently authorized position of Undersheriff. Upon the appointment of the regular Undersheriff in October 2000, the legal
F15
authorization for the acting Undersheriff's position ceased to exist.
F16
The employee assigned the position of acting Undersheriff continued to be compensated at the rate of Undersheriff until March 2001, subsequent to the initiation of this investigation. One of the effects of this compensation was to increase retirement benefits for the employee.
F17
The retention of an acting Undersheriff after the appointment of a regular Undersheriff constitutes the employment of two (2) persons in the capacity of Undersheriff. The addition of a second Undersheriff's position to the Department would have required the Board of Supervisors to amend the Authorized Personnel Allocation Resolution. (Section 501) The authorization of a second Undersheriff as an overfill would have required the approval of the Chief Administrative Officer and the Director of Human Resources Department. [Section 503(c)] The authorization of a second Undersheriff as an "exceptional circumstance" would have required the approval of the Chief Administrative Officer. [Section 1408 (2)]
F18
There is a conflict between the provisions of the Resolution as stated in Section 501 and the language of Sections 503(c) and 1408 (2).
F19
Even if there were no such conflict, there was no authorization by the Chief Administrative Officer, or by the Director of Human Resources Department, for the continued employment and/or compensation of two Undersheriffs. There was no action by the Board of Supervisors to create a second position of Undersheriff.
F20
There is no legal basis for the continued compensation of employees for work, in a higher classification, which those employees no longer perform. That situation would cause the County to expend funds for work it did not receive, and thus would constitute a misuse of public funds
F21
There is no mechanism in the County's Personnel and Payroll system to automatically detect and alert County staff to several conditions: a. employees remaining in acting positions for periods in excess of six (6) months without reauthorization; b. employees being paid for working in a higher classification after having ceased to work in that capacity; and c. a greater number of employees being compensated for working in a classification than a department has authorization to employ.
F22
At the time of the filing of the complaint, the DA's Office sent a 10 day letter to the defendant directing the defendant to submit to "a standard law enforcement identification booking" procedure.
F23
A 10-day letter is issued for the purpose of notifying a defendant to surrender, at the defendant's convenience, for booking prior to a specified date. It is used in those cases, which meet the following criteria: The defendant has not previously been arrested and booked for an act which is the basis for the complaint charged; A warrant has not already been issued for the defendant for charges resulting from the complaint; Where the DA believes the defendant will voluntarily comply with the directed booking.
F24
The use of a 10 day letter does not provide the Court, or any Law Enforcement Agency within El Dorado County, with a notice that will trigger a default warning in the event the defendant does not comply with the written direction for booking.
F25
At a pre-arraignment conference on some date prior to the defendant's scheduled arraignment, the defendant's attorney made a request of the court for a postponement of the required booking.
F26
The Chief Assistant District Attorney was present at this conference.
F27
There is conflicting evidence regarding the position of the DA's representative on the issue of postponement of booking.
F28
There is no reported record of this conference and therefor the position of the DA's representative on this request is not documented.
F29
At the original date set for the defendant's arraignment, the court record reflects: A representative of the DA's Office was not present; The defendant's attorney and the victim's attorney were in attendance; A representation by the defendant's attorney was made to the Court, "We're very close to a civil compromise in this."; and • The Court granted the defendant's attorney's request for a continuance of an arraignment hearing to facilitate the arrangement of a civil compromise agreement or be assigned to a trial court.
F30
In October 2000, the case was heard by a visiting judge, and at that time it was settled by civil compromise pursuant to California Penal Code Sections 1377 and 1378.
F31
California Penal Code Section 1377 provides: "When the person injured by an act constituting a misdemeanor has a remedy by a civil action, the offense may be compromised, as provided in Section 1378, except when it is committed as follows: a. By or upon an officer of justice, while in the execution of the duties of his or her office. b. Riotously. c. With an intent to commit a felony. d. In violation of any court order as described in Section 273.6 or 273.65. e. By or upon any family or household member, or upon any person when the violation involves any person described in Section 6211 of the Family Code or subdivision (b) of section 13700 of this code. f. Upon an elder, in violation of Section 368 of this code or Section 15656 of the Welfare and Institutions Code. g. Upon a child, as described in Section 647.6 or 11165.6." (Emphasis added)
F32
California Penal Code Section 1378 provides: "If the person injured appears before the court in which the action is pending at any time before trial, and acknowledges that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom; but in such case the reasons for the order must be set forth therein, and entered on the minutes. The order is a bar to another prosecution for the same offense."
F33
California Penal Code Section 1379 states: "No public offense can be compromised, nor can any proceeding or prosecution for the punishment thereof upon a compromise be stayed, except as provided in this Chapter."
F34
The Chief Assistant District Attorney was present at the hearing at which this case was civilly compromised.
F35
There was no court reporter present at the hearing at which the case was settled and the civil compromise approved. Accordingly, there is no transcript of the DA's position regarding this case disposition.
F36
The DA's standard policy on civil compromise, where civil compromises are legally permissible, is one of the following: No position on the proposal; or Opposition to the proposal.
F37
In practice the Court generally will not approve a civil compromise in the face of an objection by the DA.
F38
The practical effect of the DA taking no position in opposition to a civil compromise is, in the opinion of the Grand Jury, a de facto approval of the proposed civil compromise.
F39
Dispositions of criminal cases by civil compromise are unusual events in El Dorado County.
F40
Two of the sixty-one aforementioned cases, were disposed by civil compromise. This case was one. The second, with a loss value of approximately $500, was charged as a felony, later reduced to a misdemeanor, and subsequently civilly compromised on April 10, 2001.
F41
During the course of the disposition hearing the defendant's booking status was not brought to the attention of the visiting magistrate.
F42
The defendant in the case, which is the subject of this complaint, never submitted to the required booking as directed in the 10-day letter.
F43
The case having been disposed by civil compromise, the criminal justice system no longer has authority to compel the defendant to submit to a "standard law enforcement identification booking."
F44
The Grand Jury found no evidence that El Dorado County Sheriff Hal Barker attempted to cover-up the defendant's criminal misconduct, nor did he at any time attempt to influence, or interfere with the investigation of this case.
F45
The procedures followed by the District Attorney's Office during the investigation, filing, proceedings, and disposition of this case were not legally impermissible.

Recommendations 5

* This report's PDF did not contain easily extractable text and required Optical Character Recognition (OCR) for analysis. There may be minor errors in the extracted findings and recommendations due to OCR limitations with scanned documents.