El Dorado County Grand Jury • 2000-2001

EL Dorado County Grand Jury Report*

Published: June 25, 2001 184 pages Consolidated Report

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⚠️ Translation Notice: This content has been automatically translated. The original English text is the official version. Translation may contain errors.

⚠️ Este contenido ha sido traducido automáticamente. El texto original en inglés es la versión oficial. La traducción puede contener errores.

Note: Missing finding numbers detected: F73

Findings 86 findings

The then Undersheriff did not attend work from January 28, 2000, until his retirement on May 5, 2000.

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".

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

which the then Undersheriff would not have been entitled to receive payment at the time of his retirement.

The then Undersheriff was not sick during this period. The affected employee was entitled to receive payment for 504 hours of sick leave

upon retirement under Section 1009 (A) The El Dorado County Salary & Benefits Resolution for Unrepresented Employees.

The affected employee received payment for 504 hours of sick leave upon his retirement.

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.

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.

F46

A courtesy copy of this letter was routed to the CAO.

F47

In a memorandum from the County Treasurer/Tax Collector dated February 8, 2000, to the District III Supervisor, several recommendations were made regarding the Project. The last of these reads: "All Star Investments, LLC, should fully disclose to all interested parties all income from all sources on this deal, including any spread on the interest rate."

F48

The Grand Jury found no evidence that this request was ever made of All Star. No such information was ever provided to the County by All Star.

F49

In an attachment to a letter dated May 23, 2000, All Star represented the Costs for Phase I of the Project to be $38,100,000.

F50

The County received a grant from the State Bureau of Corrections (BOC) in the amount of $1.4 million, the funds to be applied to the construction or renovation of a juvenile hall facility. The grant included a deadline for the use of funds.

F51

Repeated changes in the Project caused delays in the required CEQA process, which, combined with other lease issues, led to negotiations for the Juvenile Hall portion of the Project not being completed in a sufficiently timely manner to allow the expenditure of the grant funding prior to the grant deadline. The funds were returned to the State without prejudice.

F52

All Star made a demand to the CAO for payment, in a letter dated June 7, 2000, which reads in part: "We request that the County honor the commitments made in the July 9, 1999 Letter of Agreement, as amended September 9, 1999, and provide All Star Investments with immediate payment of the aggregate total of $1,400,000 now due and owing for the environmental and design documentation furnished to the County." No supporting invoices or other documentation justifying the amount of such payment were submitted by All Star to the County.

F53

On June 14, 2000, notwithstanding the absence of supporting invoices or other documentation justifying the amount of All Star's claim, the CAO prepared an . . . Agenda Transmittal and letter attachment recommending to the BOS that the All Star billing be approved for payment, and paid, in the amount of $1,400,000. These funds were to be paid from the Department 15 Capitol Facilities Construction Account. The CAO represented to the BOS that it had previously approved "a Letter of Agreement and amendments thereto calling for the payment of $1.4 million to All Star Investments" in the event the lease was not finalized by April 2000. (Emphasis added). That was incorrect. The BOS had actually authorized the payment of up to $1.4 million, not a flat fee of $1.4 million. The matter was scheduled as Agenda Item #86 on the BOS Calendar for June 27, 2000. The Agenda item itself, as opposed to the documents submitted to the members of the BOS in support of the Agenda item did not publicly specify the amount of payment to be made.

F54

The CAO's recommendation to the BOS was misleading, in that it did not advise the BOS of the following facts: That the $600,000 figure for the Phase I Court Facility was a cap, rather than a a. fixed fee; b. That the $500,000 figure for the Sheriff's Facility was a cap, rather than a fixed fee; c. That the $300,000 for the Juvenile Hall had been approved on the basis of the CAO's representation of it as a cap, rather than a fixed fee, contrary to the language of the agreement (Amendment #1) itself; d. That no supporting backup for All Star's claim for its own services, or allocation of that claim between three separate portions of the Project, had been received; and e. That no supporting backup for All Star's claim for subcontractors' services, or allocation of those claims between the three separate portions of the project, had been received.

F55

After input from the Auditor/Controller, at the June 27 meeting of the BOS, the CAO modified his recommendation to authorize payment to All Star "after proper invoices are received and reviewed by the CAO, County-Counsel and Auditor-Controller."

F56

Except for the input of the Auditor/Controller, it appears the sum of $1.4 million would have been paid to All Star without any determination having been made by the CAO or the BOS: That $600,000 had actually been expended by All Star for the Phase I Court a. facility; b. That $500,000 had actually been expended by All Star for the Sheriff's facility; C. That the amounts of All Star's subcontractors claims, and allocation of those claims between the three separate phases of the project, were justified; or d. That the amount of All Star's claim for its own services was justified.

F57

All Star submitted an invoice dated 7/10/00. It is a single item invoice for "Professional Services rendered for the schematic design for the El Dorado Juvenile Hall Facility". The amount billed was $300,000. Because of the language of Amendment #1, which constituted a fixed fee agreement, the Auditor paid the claim in full on September 6, 2000.

F58

Examination of billings and invoices associated with the work of All Star and its subcontractors shows that the reimbursable expenses associated with the Juvenile Hall Facility would have been less than $140,000. Thus the fixed fee provision of Amendment #1 ultimately cost the County in excess of $160,000. Mixing of a "fixed fee" agreement with other "cap" agreements in the same project created a foundation for additional issues regarding the amounts due and payable by the County.

F59

All Star submitted to the County a one-page Invoice, dated July 17, 2000, seeking payment in the amount of $1,123,222.20 for the following costs: a. $450,000 for Development and Management Services rendered for the El Dorado County Courthouse and Sheriff Facility. The claim for those costs was supported by a one-page memo, dated July 3, 2000, asserting that an Ellen Warner spent 1,800 hours on the project, at a rate of $250 per hour, and that the hourly rate was "inclusive of all management, accounting and overhead." b. $503,840.00 for Nacht & Lewis Architects. c. $63,668.85 for Carlton Construction Co. d. $4,066.50 for The Hoyt Co. $5,000.00 for Walker Parking Consultant. e. f. $45,997.03 for Legal Services. $45,000.00 for Financing Services. g. h. $5,669.82 for Miscellaneous Expenses. No subcontractor invoices or other billing documents were submitted in support of the claim.

F60

In a letter dated August 3, 2000, All Star responded to a concern which the County had raised regarding the possibility All Star was double billing for work preformed on the Juvenile Hall Facility. The letter reads in part: "We have reviewed the billing and back up submitted to you previously, and confirm that the Juvenile Facilities costs are not included in the Sheriff and Courthouse Project."

F61

Ellen Warner, the person identified in the claim referenced in F59 (a.) above, was represented to the County by All Star through numerous communications on All Star letterhead, to be "VICE PRESIDENT, All Star Investments, LLC". Further, according to the CAO in a letter to All Star dated October 25, 2000, "John Thomas has readily acknowledged that his company [All Star] did not incur a reimbursable cost to Ellen Warner in the amount of $250.00 per hour."

F62

Invoices obtained from Nacht and Lewis, the company identified in the claim referenced in F59 (b.) above, for billings to All Star for work preformed on the Project, show total billings of $523,077.08. Of that sum, however, $120,849.60 is clearly marked and billed exclusively to work preformed on the Juvenile Hall Facility.

F63

Examination of billings from Carlton Engineering, the company identified in the claim referenced in F59 (c.) above, discloses that the amount actually billed by Carlton Engineering was $62,961.87, of which $6,453.30 was directly attributable to work preformed for the Juvenile Hall Facility. This was subsequently confirmed by a letter from All Star dated November 17, 2000.

F64

As a result of the review of "proper invoices" by the Auditor/Controller and County Counsel, the Auditor/Controller determined that All Star was legitimately entitled to the amount of $376,358.64 for services preformed on the Project in addition to the $300,000 fixed fee paid for the Juvenile Hall Facility. The total paid by the County to All Star for its services was $676,358.64, not the $1.4 million originally claimed by All Star.

F65

Diligence on the part of the Offices of the Auditor/Controller and County Counsel resulted in savings to the County in excess of $700,000.

F66

An escrow, No. PV-207337, was opened at Inter-County Title Company in connection with the purchase of Parcel A by exercising the Purchase Option which had been acquired through escrow No. PV-206564. As of February 15, 2001, when escrow No. PV-207337 closed, the County had expended a sum in excess of $235,000 to purchase Parcel A, not counting the $70,000-plus which the County had paid for the Option to purchase that parcel.

F67

As of February 15, 2001, the County had expended solely for the acquisition of the Logan Building and related parcels, out-of-pocket, approximately $2,155,000. That sum is essentially identical to the sum which Frank, on February 24, 2000, had told Hanford would be required to acquire those parcels. That sum does not include the approximately $130,000 which the County has expended, out-of-pocket, on non-county- employee labor and materials for changes to the lower floor of the Building for occupancy by the Sheriff's Office, nor does it include the amount, unquantified as of the date of this report, of non-out-of-pocket costs of county employee time incurred in the making of those changes.

F68

The 1999/2000 Grand Jury found that, "[a]s of June 1, 2000, the [BOS] has failed to inform the public of its specific intended use of the Logan property." The BOS agreed with that finding, but stated that "[o]nce this decision [regarding which County departments would ultimately occupy the Logan facility] is reached, it will be announced publicly by the Board." As of March 1, 2001, however, ten months later, and with the exception of the Sheriff's Department's occupancy of the lower floor, no such announcement had been made.

F69

As of March 1, 2001, George Martin ("Martin"), the Director of DGS, was, for the first time, in the process of seeking bids for an independent study to be conducted by a consultant in order to determine occupancy feasibility and what those costs were likely to be. As of that date, out-of-pocket costs approximating $130,000 had already been expended in connection with the occupancy by the Sheriff's Department of the lower floor of the Building. That expenditure, however, is approximately $100,000 less than what would have been expended had the Sheriff's request for purchase of two modular facilities to be located in the parking area of the existing Sheriff's facility, and related remodeling of that existing facility, been approved and implemented.

F70

As of March 9, 2001, the County had expended, in both acquisition costs and remodeling costs for the lower floor of the Logan Building, approximately $2,300,000, not counting the time costs of County employees involved in that remodeling. Moreover, no remodeling or retrofitting costs or expenditures had yet been incurred in connection with the middle and upper floors of the Logan Building, and no costs or expenditures had been incurred in connection with the design and construction of any proposed facility to be located on Parcel A.

F71

On March 13, 2001, on request of newly elected Supervisors Baumann and Borelli, the BOS undertook discussion of the subject of whether the County should continue to expend funds in connection with the Logan Building, or whether the County should sell it and cease further expenditure of funds thereon. The BOS directed Martin, the Director of DGS, to investigate: The space needs of the County generally; • The most likely appropriate potential departments or agencies to be assigned to use • the Logan Building; and • The probable costs of retrofitting the Logan Building to make it usable for those departments or agencies; and To report the results of that investigation back to the BOS on April 24, 2001. • . That direction effectively obligated DGS, which had no specific expertise in the subject, to perform the same functions for which it had previously solicited bids from consultants, in a highly compacted time frame.

F72

On April 24, 2001, the Director of DGS presented a report to the BOS in response to the BOS's direction of March 13, 2001. In that report, the DGS Director made the following representations to the BOS: Minimum retrofit costs would total $349,000; • Complete retrofit costs would total (depending upon whether the existing tile on the middle floor was or was not removed prior to the installation of carpeting) $389,000 to $397,000; · Purchase of furniture, not including desk top office supplies, for approximately forty-five (45) employees occupying the Building would cost an additional $157,500; • Actual cost of the Logan Building and related parcels was $2,157,637; • The Building and related parcels had appraised values of $1,565,000 for the Building (Parcel C), $110,000 for the parking area (Parcel B) and $255,000 for the "lot" (Parcel A), or a total of $1,930,000. • The County's acquisition cost was $227,637 over that total appraised value of $1,930,000; • Fair market value of the Logan Building and related parcels, for resale purposes, is between $1,000,000 and $1,450,000; Continued occupancy of the lower floor of the Building by the Sheriff's Department, • avoiding the purchase of two modular units for that purpose, would effect an annual savings of $30,000; Potential rental to private businesses of the five suites on the upper floor of the That the Building not be sold at this time; That the Sheriff's Department continue to occupy the lower floor; That the upper floor be rented out to private businesses; That there be a "thorough analysis" of the appropriateness of occupancy of the Building by the departments which he had identified; and That rental demand for the middle floor of the Building be "probe[d]."

F74

Inherent in the report of the DGS Director is the proposition that, if the Logan Building were to be sold, the County would probably sustain a loss of approximately $750,000 to $1,000,000. Whether that amount would or would not exceed the amount of additional funds necessary to retrofit the Building for purposes of efficient use by the County is, in the view of the Grand Jury as of the time of rendering this Report, a question requiring further study and investigation by qualified design and engineering professionals. Absent such study and investigation, however, it is the tentative view of the Grand Jury that the amount of those retrofitting costs would exceed the amount of the loss that the County would sustain upon a sale of the Logan Building and related parcels.

F75

The BOS, as a group, did not tour or otherwise view the Logan Building prior to authorizing its purchase. Some, but not all, of the members of the BOS did view it on an individual basis. At least one of the members of the BOS, however, never saw the Logan Building before voting to authorize its purchase.

F76

The 1999/2000 Grand Jury found that "the County appear[ed] to have paid significantly more than either the property's appraised value or the price noted in the real estate marketing documents." In its response thereto, the 1999/2000 BOS stated that that appraisal was "predicated upon the facility being utilized as an income generating property," and that "changing the use from income producing to non-commercial government use no longer justifie[d] this significant discount." That response ignored the fact that the only "discount" discussed in the Spencer Appraisal Report was a discount from $1,675,000 "stabilized" value, based on the income method of valuation, to $1,530,000 "as is" value. That response also ignored the fact that the "comparable sales" valuation of the Logan Building, as discussed in the Spencer Appraisal Report, was $1,620,000. For these reasons, this Grand Jury concludes that the 1999/2000 BOS was less than candid and forthright in its response to the 1999/2000 Grand Jury Report on the Logan Building.

F77

The 1999/2000 Grand Jury found that "[a]ny required internal modifications [of the Building] will require expenditure of additional funds." In response thereto, the BOS stated that "[m]odifications and renovations of this complex will be required to meet the specific functional requirements of its, yet to be determined, new tenant. However, the current total cost remains $600,000 less than the estimated cost to have built a new comparable facility (1.7 acres with the same square footage); and that assumes a suitable site would be available and that no major environmental impacts were identified or would require mitigation." That response evaded the following issues: That the "replacement cost" figure did not appropriately value the Logan Building, because the building was overbuilt for the area and no other purchaser would have paid replacement-cost for the Building; That the County had no legitimate need to acquire an "overbuilt" building; That the interior of the Building was not configured in a manner which would • reasonably accommodate the County's needs, without the existence of substantial wasted space; • That because the County did not then know (and, with the exception of the lower floor of the Building, as of June 20, 2001 still does not know) the identity of the "yet to be determined new tenant," it therefore had no legitimate basis for speculating that the costs of modifications and renovations required to meet the specific functional requirements of that tenant would be less than $600,000; and • That, by referring only to "major environmental impacts [which] would require mitigation," the County ignored the potential ADA impacts arising from the issue of access to the upper floor. For these reasons, this Grand Jury concludes that the 1999/2000 BOS was less than candid and forthright in its response to the 1999/2000 Grand Jury Report on the Logan Building.

F78

The 1999/2000 Grand Jury recommended that the BOS "be more forthcoming with the citizen taxpayers regarding all aspects of its acquisition of the Logan property." In response thereto, the 1999/2000 BOS stated that "[t]he recommendation has not yet been implemented, but will be implemented in the future." That commitment by the . . . 1999/2000 BOS was subsequently ignored by it, in the following respects: By its action in exercising the Purchase Option on Parcel A in accordance with approval by the Planning Commission, which that Commission had approved as a Consent Calendar agenda item without the type of hearing and discussion which the public had been told would occur; By its action in authorizing that acquisition based on the agendizing of the proposal to exercise the Purchase Option as a Consent Item on its own calendar rather than as an item agendized for discussion; and By its action in authorizing suit to be brought against the Grand Jury to prevent the Grand Jury from inquiring into Closed Session matters, into communications between BOS members with County Counsel, and into communications between county employees and County Counsel, pertaining to matters involved in the acquisition and development of the Logan Building and related parcels. In this regard, this Grand Jury concludes that the 1999/2000 BOS was less than candid and forthright in its response to the 1999/2000 Grand Jury Report on the Logan Building, and/or in its implementation of that response.

F79

Although the 1999/2000 Grand Jury investigation of the Logan Building acquisition was initiated on the basis of a complaint alleging the existence of conspiratorial conduct, the 2000/2001 Grand Jury was unable to develop any direct evidence of a specific conspiracy. Although Albaugh and the Lyons both lived in Auburn, the Grand Jury was unable to develop any direct or specific evidence that they had any contact or communications with, or even knew, each other. The Grand Jury was also unable to develop any direct evidence of other conspiratorial conduct on the part of any other persons involved in the acquisition of the Logan Building and related parcels.

F80

The existing interior of the middle floor of the Logan Building is configured (and partially constructed) in such a way that, if and when it is assigned for use by county agencies, the following situations will result and potential impacts, by way of example only, will occur: The nature and quantity of restroom facilities within the Building, while appropriate for a single-owner business, are inadequate for a County building serving public needs, and substantial additional plumbing improvements and expansion will be required; • The floor-tile covering most of the middle floor of the Building, while obviously luxurious and expensive, is unsuited to traffic by the public. It either will have to be (i) removed and replaced or (ii) covered by some kind of carpeting. If that is not done, it will constitute a potentially dangerous condition as to which the County will be exposed to potential liability for slip-and-fall incidents; • Either (i) there will be a significant amount of wasted and unusable space on the middle floor, or (ii) a considerable amount of the expensive built-in cabinet and drafting-table fixtures on that floor will have to be removed, reconfigured and replaced. Significant, but as yet unquantified, remodeling and/or retrofitting costs will be necessary to mitigate these, and other, problems.

F81

The Logan Building is located in an area of Diamond Springs which is already subject to significant traffic congestion, and the adaptation of the Building to County uses will exacerbate that problem. Because the acquisition by the County of the Logan Building and related parcels was "categorically exempt" under CEQA, however, no environmental study of those traffic, or any other, environmental issues was undertaken prior to its acquisition.

F82

There are significantly differing views as to the amount of the total additional costs and expenditures estimated to be required in order to make the Logan Building fit and usable for county purposes. At the low end of the estimates is that of the Director of DGS that those costs involve a minimum of $349,000, and for a complete retrofit will require $389,000 to $397,000, plus an additional $157,000 for employee furniture. In the middle is an estimate of All Star Investments, made during the course of its work on the Justice Center project, that approximately $750,000 would be required for use of the Logan Building by the Sheriff's Office. It is the view of the Grand Jury, however, that if a proper and appropriate job of remodeling is done in order to reconfigure the Building for maximum efficiency of use by the County, the costs and expenditures therefor will exceed, and probably will substantially exceed, seven figures, i.e., $1,000,000 or more.

F83

The Grand Jury expresses no view, as of the time of the preparation of this report, as to whether the County (i) should incur the costs and expenditures necessary to completely retrofit the Building in light of its previously expended funds, or (ii) should "cut its losses" and attempt to dispose of the Building at the best available price, recognizing that it will not be able to recover the full the amount that it has previously expended. The Grand Jury is of the view, however, that that determination should not be made by the BOS until a study and report from a consultant with expertise in the subject, setting forth specific proposed uses and costs, has been completed and presented to the BOS.

F84

In November 2000, the County Counsel and the CAO asserted claims of confidentiality and privilege as to some of the Grand Jury's inquiries of them pertaining to this investigation, and they accordingly testified only as to non-confidential matters. The 1999/2000 BOS then authorized the filing of a lawsuit against the Grand Jury to preclude inquiry into such matters. On April 3, 2001, Superior Court Judge Suzanne Kingsbury signed and filed a Judgment which rejected the County's assertions. The 2001/2002 BOS then authorized disclosure of all matters pertaining to this (and one other) investigation, and the Grand Jury obtained further testimony from the CAO concerning matters previously withheld.

F85

Section 703 of the County Charter provides as follows: "Every county officer and employee shall cooperate in providing the Grand Jury with any requested information or documents, except where disclosure is prohibited by law."

F86

In the County's lawsuit against the Grand Jury, in arguing that Section 703 of the County Charter did not constitute a waiver of attorney-client privilege or closed session confidentiality, the County Counsel made the following assertions concerning that provision: In the ballot arguments made at the time the Charter was adopted by the voters, the "County Counsel's impartial analysis advised, 'The proposed charter makes relatively few substantive changes to provisions already contained in general law," and that "[w]aiver of the lawyer-client privilege and closed-session confidentiality as to the Grand Jury were not among them." • "[T]here is no reason in law or logic why section 703 should not simply be declarative of existing law." "Section 703 is operative as a policy expression of full support for the Grand Jury's • work, without altering existing law."

F87

Superior Court Judge Kingsbury, in her April 3 Judgment, did not rule on the question of the legal effect of Section 703 of the County Charter. She did not rule that Section 703 constituted a waiver of privilege or confidentiality by the County as to the Grand Jury, but she also did not rule that it did not constitute such a waiver. It is the view of the Grand Jury, contrary to that of the County Counsel that Section 703 was intended to, and does, constitute such a waiver, and that that waiver is additional to and separate from the determinations of state law which Judge Kingsbury made in the Judgment.

Recommendations 16

R1

Sick leave regulations should be rewritten with adequate specificity to give notice to employees of their rights and to give notice to the department of the specific regulations which are its responsibility to enforce.
R2

The Sheriff should enforce the sick leave regulations uniformly.
R3

The County personnel and payroll systems should be upgraded to include a default mechanism to flag situations such as those noted in F21 (a) and F21 (c) above.
R4

The provision of "exceptional circumstance" authorized in Resolution Section 1408 (2) is unnecessary and should be eliminated because of existing Board of Supervisors authority to address exceptional circumstances.
R5

HRD should be responsible and accountable for the administration and/or oversight of all personnel actions within El Dorado County.
R6

The Board should hold a workshop regarding the Brown Act and include as a participant the Secretary to the Superintendent who prepares the Agendas and Minutes of Board Meetings.
R7

In light of the fallibility of human memory and for purposes of memorializing the specific nature and content of its closed session discussions and decisions, and particularly those decisions and directives which are not required by the Brown Act to be publicly "reported out," the BOS should provide for the tape recording of its closed session proceedings, and should maintain those tapes for periods of not less than two years from the dates of those sessions.
R8

To obtain an accurate exposition of the views of the residents of the County, the BOS should adopt a resolution that a proposed amendment to Section 703 of the County Charter be presented to the voters for their consideration and approval. That proposed amendment should provide that the Charter's requirement of "cooperation" with the ..Grand Jury by "every county officer and employee" contains no exceptions, that no otherwise available claim of confidentiality or privilege may be raised as a defense against or objection to the issuance and enforcement by the Grand Jury of subpoenas for witnesses and documents in the exercise of the Grand Jury's "watchdog" functions, and that any such claim is specifically waived.
R9

Except for recurring purchase orders and other purchase acquisitions in which the sole documentation is a seller's invoice, Department Heads should be required to consult with the CAO and the County Counsel at the inception of negotiations concerning any Contract involving a potential cost or liability to the County exceeding the sum of $10,000, for participation in the drafting and implementation of any such Contract. No such matter should be permitted to be placed on any BOS Agenda unless and until there has been compliance with this requirement.
R10

No single proposed action by the County involving potential impacts upon the County's economic condition in excess of $10,000, and no multiple contracts (including but not limited to purchase orders) with any single contractor exceeding the cumulative amount of $25,000 in any fiscal year, should be permitted to be placed on any BOS Agenda unless and until there has been prior consultation by the requesting Department Heads and/or the CAO with the County Auditor/Controller concerning that proposed action. The Auditor/Controller should have at least one week's time to analyze and review that proposed Agenda item, and more time if the Auditor/Controller deems it necessary in the best interests of the County, unless the CAO makes, and submits to the BOS along with his proposed recommendation, an express written finding and determination, and the BOS, separately at the time of hearing thereon, makes an express finding and determination, that for specified factual reasons of emergency or urgency, the interests of the County will be irreparably harmed if the time necessary for such analysis and review is required.
R11

The CAO should refuse to initiate or permit, and the BOS should refuse to accept, any Agenda item for which a "blue sheet" is required, unless the County Counsel has had adequate time to analyze and review that proposed Agenda item. This requirement may be waived if the CAO makes and submits to the BOS along with the proposed recommendation, an express written finding and determination, and the BOS, separately at the time of hearing thereon, makes a similar express finding and determination, that, for specified factual reasons of emergency or urgency, the interests of the County will be irreparably harmed if the time necessary for such analysis and review by the County Counsel is required.
R12

No recommendation set forth in the CAO's Board Letter transmittals to the BOS should be made which does not call the attention of the BOS to information set forth in the text of that Board Letter which may reasonably be viewed as supporting a contrary recommendation.
R13

Augmenting the action of the Interim CAO, no Addendum should be permitted to be added to the BOS's Agenda after the Clerk has prepared the Agenda, unless the CAO makes, and submits to the BOS along with a proposed recommendation, an express written finding and determination, and the BOS, separately at the time of hearing thereon, makes an express finding and determination, that, for specified factual reasons ٠.٠ of urgency, the interests of the County will be irreparably harmed unless the Addendum is added to the Agenda.
R14

The Agendas, and any Addenda thereto, both as mailed and as posted on the BOS's website, should contain express reference to the fact that supporting documents for the Agenda items exist and are available for public review and inspection in the office of the Clerk of the BOS.
R15

The BOS should change the language of its form of "report out" from Closed Session, when it has taken no action of a type required under Section 54957.1 of the Brown Act to be reported out, to read "No Action Required by Law to be Reported."
R62

GOVERNMENT AND ADMINISTRATION COMMITTEE Procedures for Board of Supervisors' Meetings Reason for the Report During the course of its investigations on other subjects, the Government and Administration Committee of the 2000/2001 Grand Jury heard several comments concerning the manner in which last minute, unpublished and unnoticed changes to the agendas of public legislative and administrative bodies within the County were accomplished. These changes frequently resulted in action by those bodies which (i) occurred without the opportunity for significant community input, and (ii) occurred without the opportunity for adequate review of potential legal and economic impacts upon the County. Based on those comments, this Committee undertook an investigation into the written procedures and actual practices involved in connection with the agendizing of matters brought before the Board of Supervisors ("BOS" or "Board"). Scope of Investigation The Committee's investigation included: Consideration of the significance of the comments referenced above; •

Commendations 20

CM1

the tour: Some juveniles were interviewed.
CM2

and Officials: Contracts, Letters of Agreement, drafts of proposed contracts, counterproposals
CM3

and letters discussing issues relating to contractual commitments by the County and All Star; A memorandum from the Taxpayers Association of El Dorado County to the BOS "REGARDING: Proposed Method of Financing and its Approval for the Placerville Justice Center Project"; A legal opinion of the County Counsel regarding an analysis of Measure A The committee's investigation also included testimony from: The County Auditor/Controller; The County Counsel; ٠ A Deputy County Counsel;
CM4

The District Attorney (DA) and members of his staff; The former interim Director of the County's Department of General Services
CM5

("DGS"); The former County Administrative Officer ("CAO"); and ٠ Three members of the 1999/2000 Board of Supervisors.
CM6

When he became aware of the recorded amount of delinquency, he attempted to pay the amount certified. He subsequently received a bill for penalties and interest in addition to the recorded principal amount. Scope of Investigation The Government & Administration Committee's investigation included.
CM7

the policies and procedures pursuant to which documents can be recorded in the Official Records of El Dorado County;
CM8

Review and examination of the Treasurer/Tax Collector's written tax collection policies and procedures for both secured and unsecured property; and · Review and examination of state law pertaining to the filing of liens upon property based upon the existence of unpaid and unsecured property tax obligations.
CM9

The County Counsel, and examination and review of records produced by him;
CM10

The County Auditor, and examination and review of records produced by him;
CM11

The former Interim Director of the Department of General Services ("DGS");
CM12

The Director of DGS who succeeded that Interim Director;
CM13

The DGS employee having responsibility for Real Property Purchases and
CM14

Acquisitions, and examination and review of DGS records produced by her; The trustee of Logan Family Enterprises, L.P. ("LFE"), the former owner of the
CM15

Logan Building and related parcels (formally known as the "Grand Victory Mine Center"); The real estate broker for the owner of the Logan Building and related parcels and option; The purchaser of a promissory note secured by a trust deed on Parcel C of the
CM16

Logan Building property, and examination and review of records produced by him; A representative of a local taxpayers' association; Three (3) members of the 1999/2000 Board of Supervisors ("BOS"); A real estate licensee not involved in the County's acquisition of the Logan Building property; and A member of the media. The Committee's investigation also included review of: A videotape recording of a presentation to the BOS by the then owner of, and grantor to the Logans of, an Option to purchase Parcel A immediately adjacent to the Logan Building; Various newspaper articles pertaining to the acquisition, and subsequent use, of
CM17

the Logan Building, and to the related development and occupancy by the Sheriff's Office of a proposed Justice Center; Four separate Escrow Files of Inter-County Title Company pertaining to the three
CM18

separate parcels of real property and the Option relating to the Logan Building; Records of the United States Bankruptcy Court, Eastern District of California, pertaining to the Chapter 11 Petition filed by LFE; An independent appraisal of the Logan Building property, performed pursuant to contract with the County; An appraisal of the Logan Building property by the County Assessor; The minutes (Conformed Agenda) of the Planning Commission pertaining to a
CM19

hearing on April 27, 2000, on the subject of the acquisition of the Logan Building; Numerous sets of Agendas, Agenda Packets, and Conformed Agendas (Minutes) of both the 1999/2000 and 2001/2002 BOS meetings pertaining to the acquisition, subsequent use, and possible disposition of the Logan Building; and · Various videotape recordings of BOS meetings pertaining to the acquisition and subsequent use of the Logan Building. The Committee's investigation also included an inspection of the physical facilities of the Logan Building and related parcels.
CM20

The Grand Jury commends the six entities in which five board members responded. These were: Mother Lode Union School District, Black Oak Mine Unified School District, Garden Valley Fire Protection District, El Dorado Hills Community Service District and Pioneer Fire Protection District.

Comments 6

CO1

. Criminal Justice Committee Abuse of Sick Leave by Sheriff's Department Citizen Complaint #00/01-C-021 A Reason for the Report A citizen complaint asserted that the Sheriff approved the misuse of sick leave for an employee. The complaint alleged that the Sheriff allowed the then Undersheriff to utilize sick leave for the purpose of taking an extended paid leave prior to his retirement. Scope of Investigation The Criminal Justice Committee:
CO2

Interviewed the El Dorado County Director of the Department Human Resources;
CO3

Reviewed County sick leave policies; and
CO4

Reviewed payroll documents. •
CO5

Date 00/01-C-001 Criminal District Attorney No Action Finding: 8/02/00 Justice Remedies Available (Deferred) Outside Grand Jury System 00/01-C-002 Placerville Police No Action Finding: Criminal 8/02/00 (Deferred) Justice Resolved By Settlement 00/01-C-003 El Dorado Irrigation Special 8/02/00 No Action Finding: District Districts (Deferred) No Violation Occurred 00/01-C-004 El Dorado Irrigation No Action Finding: 8/02/00 Special District Districts (Deferred) No Violation Occurred 00/01-C-005 South Lake Tahoe South Lake See Report 8/02/00 Police Tahoe 00/01-C-006 El Dorado County Criminal No Action Finding: 8/02/00 Sheriff Justice In Litigation 00/01-C-007 El Dorado County Audit & No Action Finding: 8/09/00 Superior Court Finance Remedial Action Taken. 00/01-C-008 Black Oak Mine Education See Report 8/16/00 Unified School District 00/01-C-009 Department of Gov't & No Action Finding: 8/16/00 Transportation Admin. Remedy Available Outside Grand Jury System 00/01-C-010 Health/Social Department of Social No Action Finding: 8/30/00 Services Services Civil Remedy Available Outside Grand Jury System 00/01-C-011 Tahoe City Public South Lake 9/06/00 Deferred to Placer Utility District Tahoe County Grand Jury: District of Jurisdiction 00/01-C-012 El Dorado County Planning & No Action Finding: 9/27/00 Planning Commission Environment Remedies Available Outside the Grand Jury System 00/01-C-013 No Action Finding: El Dorado Irrigation Special 9/27/00 District Districts No Violation Occurred 00/01-C-014 El Dorado Irrigation No Action Finding: 10/04/00 Special District Board Districts No Violation Occurred XV EL DORADO COUNTY GRAND JURY 2000/2001 CITIZENS COMPLAINTS Case No. Subject Disposition
CO6

Date 00/01-C-015 Placerville Police Criminal No Action Finding: 10/04/00 Department Justice Court Settlement 00/01-C-016 El Dorado County Criminal See Report 11/01/00 Recorder & Justice Treasurer/Tax Collector 00/01-C-017 Rescue Volunteer Fire Special See Report 11/08/00 District Board Districts 00/01-C-018 El Dorado County Planning & No Action Finding: 11/08/00 Planning Department Environment Matter In Litigation 00/01-C-019 El Dorado County Criminal No Action Finding: 12/13/00 Sheriff & District Justice Insufficient Evidence Attorney 00/01-C-020 El Dorado Irrigation Special No Action Finding: 12/13/00 District Board Districts Remedies Available Outside Grand Jury 00/01-C-021 El Dorado County Criminal See Report 01/03/01 Sheriff Justice 00/01-C-022 (LAFCO) Local Special No Action Finding: 01/03/01 Agency Formation Districts No Violation Occurred Commission 00/01-C-023 El Dorado County Public See Report 01/03/01 Sheriff Buildings 00/01-C-024 El Dorado County Criminal No Action Finding: 01/03/01 Sheriff Justice No Violation Occurred 00/01-C-025 El Dorado County Criminal No Action Finding: 01/03/01 Sheriff Justice No Violation Occurred 00/01-C-026 El Dorado County Criminal See Report 01/03/01 Sheriff/D.A.'s Office Justice 00/01-C-027 El Dorado County Public No Action Finding: 01/03/01 Sheriff Buildings No Violation Occurred 00/01-C-028 El Dorado County Criminal No Action Finding: 01/03/01 Sheriff Justice No Violation Occurred 00/01-C-029 El Dorado County Criminal See Report 01/03/01 Sheriff Justice 00/01-C-030 El Dorado County Criminal See Report 01/03/01 Sheriff Justice 00/01-C-031 El Dorado County Criminal Deferred to 2001/2002 01/03/01 Sheriff Justice Grand Jury xvi EL DORADO COUNTY GRAND JURY 2000/2001 CITIZENS COMPLAINTS Case No. Subject Disposition

* 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.