El Dorado County Grand Jury • 2001-2002

Procedures for the Board of Supervisors in Responding to Grand Jury Final Reports(PDF, 45kb)

Published: September 18, 2001 16 pages
Ver PDF original

Findings 55 findings

F1
Section 933(a) of the California Penal Code (“Penal Code”) provides, in part, as follows: “Each grand jury shall submit to the presiding judge of the superior court a final report of hits findings and recommendations that pertain to county government matters during the fiscal or calendar year. Final reports on any appropriate subject may be submitted to the presiding judge of the superior court at any time during the term of service of a grand jury. A final report may be submitted for comment to responsible officers, agencies, or departments, including the county board of supervisors … .”
F2
Section 933(c) of the Penal Code provides, in part, as follows: “No later than 90 days after the grand jury submits a final report on the operations of any public agency subject to its reviewing authority, the governing body of the public agency shall comment to the presiding judge of the superior court on the findings and
F3
Penal Code § 933(d) provides that, as used in Section 933, the term “agency” includes a department.
F4
For the reasons stated in Findings F5 through F8, it was the view of the previous Grand Jury, and is the view of this Grand Jury, that the word “elected” as used in Section 933(c) of the Penal Code applies only to the term “county officer,” and does not apply to the term “agency head.”
F5
Section 933.05(b)(3) of the Penal Code provides that if a response to a grand jury’s
F6
Section 933.05(c) of the Penal Code provides, “If a finding or recommendation of the grand jury addresses budgetary or personnel matters or a county agency or department headed by an elected officer, both the agency or department head and the board of supervisors shall respond if requested by the grand jury, … .” (Emphasis supplied.) Thus, Section 933.05(c) expressly addresses only county agencies or departments “headed by an elected officer.”
F7
The difference in language between Section 933.05(b)(3) and Section 933.05(c) of the Penal Code, by referring to elected officers in the latter but not to elected agency or department heads in the former, implies that non-elected department heads may be required to respond, directly to the Presiding Judge, at least to some portions of some Grand Jury Final Reports.
F8
Further, the use of the word “or” rather than of the word “and,” in Section 933(c) of the Penal Code, implies that the terms “county officer” and “agency head” refer to separate and distinct categories of respondents, and that the word “elected” is intended to refer only to the description which it immediately precedes and not to all descriptive terms within the sentence in which it appears.
F9
Even ignoring the matters set forth in Findings F1 through F8, however, it appears to be the view of the Board of Supervisors that the word “elected” applies to both the terms “county officer” and “agency head.” The Grand Jury believes this view to be incorrect.
F10
Section 703 of the El Dorado County Charter provides, “The Board of Supervisors shall establish the format for county responses to the Grand Jury Report.”
F11
Board Policy No. A-11, “Responding to Grand Jury Reports,” has been adopted “to specify a uniform procedure and a standard format for all departments to follow when responding to the annual Grand Jury Report.” Among the stated benefits anticipated from Board Policy No. A-11 are the following: · Provision to the Board of a structurally consistent document; · Assistance to appointed department heads and the CAO in providing appropriate draft responses; · Assistance to the Board in evaluating the proposed responses; · Ensuring continuity in the Grand Jury process from year to year; and · Assistance to the Grand Jury in tracking its findings and recommendations.
F12
Board Policy A-11 contains the following relevant requirements and provisions: · Paragraph 1 requires each county appointed department head to prepare responses in accordance with the Board Policy A-11 format, and to submit those responses to the CAO within 45 days from the issuance of the Grand Jury Report. · Paragraph 2 requires that the CAO, after receiving the responses of the appointed department heads, prepare a draft response, and that both the departmental responses and the draft response be presented to the Board. No time period for the preparation of that draft response, or for the presentation of the departmental responses and the draft response to the Board, is specified in Board Policy A-11. · Paragraph 3 provides that the members of the Board “shall be allowed at least one week to review the departmental responses and to comment on the draft response prior to including it on their agenda.” · Paragraph 4 provides that, after the review and comment period described in Paragraph 3 has elapsed, the CAO shall: · Prepare a proposed Final Draft Response and a proposed letter of transmittal from the Board Chairman to the Presiding Judge of the Superior Court (“Presiding Judge”), and · Cause copies of the Final Draft Response to be (1) distributed to all members of the current and immediate past grand juries and (2) made available to the public in the office of the Board Clerk. · Paragraph 5 provides that members of the immediate past Grand Jury “shall be invited to participate in the public hearing review of the responses to the Final Grand Jury Report which they offered.” · Paragraph 8 requires that “responses received from the elected department heads … be appended to the Board’s final response.” · Paragraph 9 provides (1) that the CAO shall send correspondence to all entities identified in the Grand Jury Report alerting them to their reporting obligation under Section 933(c) of the Penal Code, (2) that the CAO shall request a courtesy copy of their response, and (3) that such courtesy copies shall be made available for public viewing in the Board’s office. · Paragraph 10-E provides, where a response to a recommendation is that further analysis is required, that there be a detailed explanation stating the scope and parameters of the study with a time frame stating when, not to exceed six (6) months from the date of publication of the Grand Jury’s report, the matter will be prepared for discussion and disposition.
F13
The previous Grand Jury publicly issued its final report on June 27, 2001. As required by Section 933.05(f) of the Penal Code, copies of that final report were delivered on June 25, 2001 to all persons and entities designated as “Respondents,” including but not limited to the members of the Board, 48 hours prior to public release. Some department heads, both elected and non-elected, were designated in that report as “Respondents.”
F14
Numerous responses from respondents who were elected county officers or elected department (agency) heads were received by the 2001/2002 El Dorado County Grand Jury (“this Grand Jury”) in July and August, 2001.
F15
Numerous responses from respondents who were public agencies and/or entities other than the County were received by this Grand Jury in July and August 2001.
F16
No responses were received by the Presiding Judge or this Grand Jury at any time from respondents who were neither elected county officers nor elected department (agency) heads.
F17
It was the view of the previous Grand Jury, and is the view of this Grand Jury, that responses and/or proposed responses to the previous Grand Jury’s Final Report, from respondents who were both elected and non-elected county officers or elected department (agency) heads, were required to be submitted to the Presiding Judge, on or before August 24, 2001.
F18
It was the view of the previous Grand Jury, and is the view of this Grand Jury, that responses and/or proposed responses to the previous Grand Jury’s Final Report, from respondents who were both elected and non-elected county officers or department (agency) heads, were required to be submitted to the Board, on or before August 24, 2001.
F19
Responses from elected county officers or elected department heads to the previous Grand Jury’s Final Report were submitted to the Board on some date, unknown to this Grand Jury, prior to preparation by county staff and submission to the Board of the Draft Response on September 7, 2001.
F20
Proposed responses to the previous Grand Jury’s Final Report from respondents who were neither elected county officers nor elected department (agency) heads were not submitted to the Board. (See Finding F12-b.)
F21
Proposed responses to the previous Grand Jury’s Final Report from respondents who were neither elected county officers nor elected department (agency) heads have never been submitted either to the Presiding Judge, the previous Grand Jury, or this Grand Jury. (See Finding F12-d.)
F22
The Draft Response to the previous Grand Jury’s Final Report, prepared by the CAO, was not submitted to the Board until September 7, 2001. That draft response was not accompanied by proposed responses from respondents who were neither elected county officers nor elected department (agency) heads.
F23
The Draft Response to the previous Grand Jury’s Final Report was not made available to the public until it was included within the publicly available Board Agenda Packet for the Board’s September 18, 2001 regular meeting on September 13, 2001.
F24
The Board was required by Section 933(c) of the Penal Code, and Board Policy A-11, to submit its final response to the Previous Grand Jury’s Final Report on or before September 23, 2001.
F25
Insufficient time existed between September 7, 2001 when the Draft Response was submitted to the Board, and September 18, 2001 when the Board was scheduled to review, modify, change and/or adopt the Draft Response as its own Response, for the members of the Board to carefully and critically review and assimilate the contents of the Draft Response.
F26
On September 17, 2001, an unaddressed, undated, and unsigned letter-memorandum (“Undated Letter”) was delivered to a member of the Board. In summary, that Undated Letter asserted that the Draft Response appeared to contain and consist of responses from county staff rather than responses from the Board. The Undated Letter also asserted that, by adopting the Draft Response in response to the previous Grand Jury’s Final Report without careful and critical review and assimilation of its contents, the Board would simply be “rubber stamping” the views of county staff rather than communicating its own views.
F27
On September 18, 2001, at the Board’s regularly scheduled meeting and in response to that Undated Letter, a motion was made, seconded and carried, that the Board “adopt the staff’s recommended responses, with the exception of the responses listed on an attached list, and that two supervisors work with the CAO and the County Counsel to prepare potential alternative responses and bring them back to the Board no later than October 16, 2001.
F28
The “attached list” appended to the Motion described in Finding F27 identified 60 specific Findings, and 26 specific Recommendations, contained in the previous Grand Jury’s Final Report.
F29
This Grand Jury believed that, pursuant to the Motion described in Findings F27 and
F30
No formal request was made to the Grand Jury by the Board at that September 18, 2001 meeting, or otherwise, for an extension of the September 23, 2001 deadline for responding to the previous Grand Jury’s Final Report. Nevertheless, based on its understanding, as set forth in Finding F29, the Grand Jury did not object to the implicit extension of time to October 16, 2001, set forth in the Motion and action of September 18, 2001. (See Finding F27.)
F31
On October 5, 2001, the Foreman and one member of the Grand Jury met with the CAO, the County Counsel, and a committee consisting of two Board members, to discuss the Undated Letter, specifically, the perceptions articulated in the Undated Letter that the Draft Response presented to the Board appeared not to view the previous Grand Jury’s Final Report as a matter deserving of serious consideration by the Board itself. The meeting was an amicable one, although no specific actions were developed or agreed upon at the meeting.
F32
By October 16, 2001, when the Board’s regularly scheduled meeting was held, no “alternative responses” to the Draft Response, as required by the Board’s action of September 18, 2001, had been prepared or brought back to the Board.
F33
Accordingly, on October 16, 2001, the Board requested that the Grand Jury further extend the deadline for its response to the previous Grand Jury’s Final Report to November 6, 2001. The Board represented to the Grand Jury that it would conduct a workshop devoted to that subject on November 5, 2001.
F34
The foregoing request was presented to the Grand Jury on October 17, 2001 and was approved by the Grand Jury. The Grand Jury directed the Foreman to advise the Board that the Grand Jury would not look favorably upon any further request by the Board for extended time to submit its response. The Foreman so advised the Chairperson of the Board.
F35
Thereafter, the County Counsel submitted to the Board a twelve-page memorandum dated November 1, 2001 (“November 1 Memo”), to which the Undated Letter was attached. A copy of that November 1 Memo was first delivered to the Grand Jury on the morning of November 5, 2001, shortly before the Board’s Workshop on the afternoon of November 5, 2001.
F36
The November 1 Memo did not discuss, on an item-by-item basis, the 60 Findings or the 24 Recommendations that were the subject of the Board’s September 18, 2001 Motion and action described in Findings F27 and F28. Instead, it set forth a discussion of the Undated Letter described in Finding F26, characterizing that letter as “raising four ‘generic’ objections and seven specific concerns” regarding the proposed Response to the previous Grand Jury’s Final Report.
F37
None of the matters discussed in the “generic objections” portion of the November 1 Memo identify, by number or page, any specific Finding or any specific
F38
Numerous statements made in the November 1 Memo were incorporated either verbatim or substantially verbatim into a nine-page letter dated December 17, 2001, described in Findings F45 and F46 (“December 17 Letter”), signed by the Chairperson of the Board and addressed to the Presiding Judge.
F39
The November 1 Memo contains the following policy statements, which the Grand Jury agrees: · “In the final analysis, the critical requirement is that the Board feel confident in adopting the draft response as its own.” ( ) · “For this process to work properly, of course, the Board must have sufficient time to review and consider the proposed responses before finally adopting them. County Counsel agrees that there is valid concern in this regard. … {T]iming problems are driven by the size and complexity of the required responses, … .” ( ) · “Because there are areas of overlapping control, of course, it may often – although not necessarily always – be appropriate for the Grand Jury to receive responses from both [elected officials and the Board] on a single issue.” (Emphasis in original.) ( ) · “County Counsel suggests that the Board clarify where appropriate whether (and why) it has adopted an elected official’s response without review, or only after some exercise of independent judgment.” ( ) · “Developing a recommendation to address the timing issues raised by this portion of the letter is challenging. The fundamental problem is the tight statutory timelines.” ( ) · “… ‘Past practice’ and unwritten policies are a poor basis for County operations – a point with which County Counsel, and no doubt the Board, agrees.” ( ) · “In a time-pressured environment, the focus naturally is more on meeting legal requirements than on providing the most comprehensive response possible.” ( )
F40
The November 1 Memo contains the following policy statements, which the Grand Jury disagrees, either in whole or in part: · “Communication of the Board’s position to the Grand Jury may be by letter rather than amendment to the formal responses in order to avoid further delay.” ( ) In the Grand Jury’s view, the exclusive procedure for responses to grand jury final reports is mandated by Section 933.05 of the Penal Code, as implemented by Board Policy A-11. · “Given that each grand jury report requires responses to literally hundreds of factual findings and recommendations within ninety days, it is simply infeasible for Board members to personally investigate and respond to each one without staff assistance.” ( ) That statement is also set forth in the December 17 Letter. ( ) In the Grand Jury’s view, that statement begs the relevant question. Because it is agreed (See Finding F39-a above.) that the Board must “feel confident in adopting the response as its own,” the question is how the Board reaches that “confidence level.” In the Grand Jury’s view, an investigation by Board members is required where: · Serious and substantial disagreements appear between findings and
F41
At its regular meeting of November 6, 2001, the Board: · Adopted the Response to the Previous Grand Jury Report as originally recommended by staff, subject to a rewriting of the response to Recommendation
F42
The Board’s action of November 6, 2001 was not a response to the eighty-four (84) specific items contained in the previous Grand Jury’s Final Report as had been anticipated by the Grand Jury following the Board’s Motion and action of September 18, 2001. (See Findings F27 and F28.)
F43
The matters discussed in the “Specific Concerns” portion of the November 1 Memo specifically identify eleven (11) [out of 60 listed on September 18] Findings, and seven (7) [out of 24 listed on September 18] Recommendations for specific response. Some other Findings and Recommendations may also have been intended for response, but they are not specifically identified by number or page in the November 1 Memo.
F44
The Board, on November 6, 2001, also adopted the County Counsel’s
F45
In the Grand Jury’s view, the proposed contact and inquiry described in Finding F44 is inadequate, in that it does not include inquiry of the grand juries in those other counties to ascertain whether those grand juries believe their counties’ responses to their reports to be adequate or appropriate. Counties that profess to have no problems in rendering their responses to grand jury reports, but which submit responses that their grand juries believe to be inadequate or inappropriate, are not models which this Board should follow.
F46
On or about December 17, 2001, the December 17 Letter was transmitted to the Presiding Judge. That letter purported to constitute compliance with the Board’s directive of November 6, 2001. (See Finding F36.)
F47
The contents of the December 17 Letter are substantially similar, but not totally identical, to the contents of the November 1 Memo. The December 17 Letter asserts that it “is meant to clarify some of the Board’s adopted responses and to address certain objections and concerns … that the Board believes are more appropriately addressed in correspondence to the Grand Jury than in its formal responses.”
F48
The December 17 Letter does not constitute an adequate or proper board response, or amendment or modification to the Board’s Responses, to the prior Grand Jury’s Final Report for the reasons set forth above in Findings F36, F37 and F40-a.
F49
In the Grand Jury’s view, the length of the 45-day response period for appointed department heads referenced in Finding F12-a creates an unnecessarily short period of time for independent review, consideration, and analysis of those responses by the Board.
F50
Because departmental responses of the type described in Findings F12-b and F20 were not presented to the Board separately from the Draft Response presented by the CAO, the Board was unable to review or consider any changes that may have been made by the CAO to the departmental responses, in connection with the preparation of the Draft Response.
F51
In the Grand Jury’s view, a period of one week for the members of the Board to review departmental responses and to comment on a draft response, as referenced in Finding F12-c, is inadequate time for serious and thoughtful review and analysis of those documents, and for further inquiry by the Board members into the details contained therein.
F52
No distribution of departmental responses of the type described in Findings F12-b and
F53
No distribution of the Final Draft Response was made to the members of either this Grand Jury or the previous Grand Jury, as required by Paragraph 4 of A-11 and described in Finding F12-c.
F54
No invitation of the type referenced in Paragraph 5 of A-11, as described in Finding
F55
No correspondence of the type referenced in Paragraph 9 of A-11 and described in Finding F12-g was sent, or request made, or copies of non-County responses made available for public viewing in the Board’s office.

Recommendations 14