Santa Clara County Grand Jury
2017-2018
From the annual report
The consolidated year-end volume. The individual investigations it contains are listed separately below.
📑 Year-End Report
The full consolidated volume; individual reports are listed below.
Individual reports (14)
Findings & Recommendations
1 findings
F11:
The Santa Clara Valley Transportation Authority (VTA) is a valuable model for effectively generating below market rate (BMR) housing on publicly-owned property. Agencies to respond are the Housing Authority of Santa Clara County (County) and the District. District Response According to VTA's Administrative Code, Section 1-1.1. Purpose and Overview, VTA is an independent special district responsible for bus, light rail and paratransit operations and for serving as the county's congestion management agency. As such, VTA is responsible for countywide transportation planning, including congestion management issues, specific highway improvement projects, pedestrian and bicycle improvement projects, and provides these services throughout Santa Clara County. Public Utility Code 100130.5(b)(1) "provides that a joint development project is a commercial, residential or mixed-use development that is undertaken in connection with existing, planned, or proposed transit facilities and is located ¼ mile or less from the external boundaries of that facility." This is VTA's specific grant of authority to engage in housing. Aligned with this authority, the VTA created a Joint Development Program (JDP). The VTA adopted the Joint Development Affordable Housing policy in late 2016. The policy ensures that VTA's Joint Development Portfolio housing offerings will be built out with an Our mission is to provide Silicon Valley safe, clean water for a healthy life, environment, and economy. The Honorable Patricia Lucas October 9, 2018 average of a 35% affordable housing portfolio and not less than 20% at an individual site. To accomplish this, VTA partners with developers to create high-density projects on its land adjacent to transit. The VTA transit-oriented developments include BMR housing. with the aim to improve VTA ridership. The District agrees with the finding that VTA is a valuable model for effectively generating BMR housing on publicly owned property; however, the District does not have any similar grant of authority to engage in housing.
Related Recommendations (2)
R11a:
The County should identify or create an agency, modeled after the VTA's JDP, to coordinate partnerships between developers and both the District and the County, for the development of BMR housing, by June 30, 2019. District Response The recommendation will not be implemented by the District because it is not warranted as the District cannot implement a recommendation on behalf of the County, and is not reasonable considering the District does not have any similar grant of authority to engage in these individual types of endeavors.
R11b:
Parcels suitable for BMR housing should be offered for development by the District and the County, by the end of 2019. District Response The recommendation, as written, will not be implemented because it is not reasonable to recommend that the District offer parcels suitable for BMR housing by the end of 2019 without specific qualifying language regarding what makes a parcel suitable for BMR housing, and considering the District does not have any similar grant of authority to engage in housing. The District thanks the Civil Grand Jury for taking on such an important, challenging and complicated issue. If you have any questions or comments regarding the District's response, please contact me at (408) 265-2600. Sincerely, Whal Refant Richard P. Santos Chair/Board of Directors Delivered—Placed in Court Services Drop Box cc: Board of Directors (7) ic:fd 0925b-l Santa Clara Valley Santa Clara Valley Water District Water District , CONFORMED COPY File No.: 18-0827 Agenda Date: 10/9/2018 Item No.: 4.2. BOARD AGENDA MEMORANDUM SUBJECT: Response to Santa Clara County Civil Grand Jury's Final Report Entitled Affordable Housing Crisis: Density is our Destiny Findings and Recommendations. RECOMMENDATION: Α. Review Response to Santa Clara County Civil Grand Jury Final Report Entitled Affordable Housing Crisis: Density is our Destiny (Finding 11 and Recommendations 11a and 11b); and В. Approve Response or Provide Additional Direction and Feedback as Necessary. SUMMARY:
Findings & Recommendations
2 findings
F1:
The District failed to make it convenient for resident homeowners who are 65 or older or disabled to apply by not having a clearly marked parcel tax link on the home page of its website. Board Response to
Related Recommendations (1)
R1:
The District should place a parcel tax link clearly marked on the home page of its website that leads directly to parcel tax information and exemption forms, by August 31, 2018. Board Response to
F2:
The District requires that residents reapply every year to maintain their parcel tax exemption. Board Response to
Related Recommendations (1)
R2:
The District should comply with state law and no longer require that residents reapply every year to maintain their parcel tax exemption. Board Response to
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Findings & Recommendations
2 findings
F1a:
There is an inherent jurisdictional conflict between an appointed superintendent and an elected Board of Education that fosters governance disunity. I disagree with Finding 1a. There is no conflict; jurisdictional or otherwise. The California Education Code clearly delineates the roles and duties of County Superintendents and those of County Boards of Education.
F1e:
The short tenure of the Superintendents has contributed to general dissatisfaction with the quality of services provided by the County Office of Education. I disagree with Finding 1e. There is no general dissatisfaction with the quality of services provided by the Santa Clara County Office of Education (SCCOE). The SCCOE is a state regional service agency providing instructional, business, and technology services to the 31 school districts of Santa Clara County. The SCCOE directly serves students through special education programs, alternative schools, Head Start and State Preschool programs, migrant education, and Opportunity Youth Academy. It also provides academic and fiscal oversight and monitoring to school districts and the 23 county board authorized charter schools; and provides essential services and technical assistance throughout the region and statewide. Various SCCOE programs, staff and departments earned awards and accolades for quality, leadership, and service.
Findings & Recommendations
1 findings
F2:
Santa Clara County does not specify the Board of Education in its Charter or in any other manner as required by California Education Code, Section 1000.
Related Recommendations (1)
R2:
The Santa Clara County Board of Supervisors should provide for • the manner of selection of the County Board of Education by Dec. 31, 2018, or, if they elect to do so by Charter, by the 2020 primary election ballot. County Response: The County agrees with Finding 2 and believes Recommendation 2 should be implemented. The Board of Supervisors will codify the manner of selection of the Board of Education in the County Ordinance Code. Unlike the provisions of law regarding the County Superintendent, Education Code Section 1000 requires that the County codify the manner of selection of the County Board of Education. Administration and County Counsel will bring forward a proposed ordinance and associated recommendations for the Board of Supervisors' consideration before December 31, 2018.
Additional Recommendations
2
Not linked to specific findings.
R1a:
The County Superintendent of Schools should be an elected office.
R1b:
The Santa Clara County Board of Supervisors should designate in a written provision of law the manner of selecting the County Superintendent of Schools by Dec. 31, 2018, or if they elect to do so by Charter, by the 2020 primary election ballot. County Response: The County of Santa Clara agrees with Finding 1f, but disagrees with
Findings & Recommendations
3 findings
F2:
It is difficult for the public to judge the performance of the DA and the Santa Clara County Public Defender Office (PDO) in improving the speed of felony-case resolutions because they: Have not publicly provided details about how their respective offices are educating and training their staffs (sic) about the ramifications of slow felony-case dispositions Do not detail how they are holding their staffs (sic) accountable. • Response to Finding 2: PDO disagrees with the Finding 2. The 2017 and 2018 Civil Grand Jury reports have relied upon incomplete and inaccurate data. However, before it became known that the 2017 Civil Grand Jury had been given inaccurate data, the PDO discussed with staff the need for expedient and efficient but constitutionally sound representation, something that is still a factor in the PDO's representation strategy. The impact of any unnecessary delay on clients, families, victims and witnesses continues to be a consideration in representation and case processing at PDO and has also been discussed with staff on an ongoing basis. Further, our felony trial team caseload sheets are updated weekly, and supervisor/attorney meetings happen regularly to discuss the status of each trial case to actively manage case progress and identify and resolve any issues contributing to delay. Memorandum 8/21/2018
Related Recommendations (1)
R2b:
Santa Clara County Board of Supervisors should require the PDO to issue report explaining how it educates its staff as to the ramifications of slow felony-case dispositions and how it holds staff accountable, by December 31, 2018. Response: The respondent agrees with the finding and recommendation. It is further recommended that the report be forwarded to the Public Safety and Justice Committee for discussion.
F3:
Finding 3a It is difficult for the public to judge the performance of the DA and the PDO in improving the speed of felony-case resolutions because neither office makes public its felony-case tracking data.
Related Recommendations (5)
R3a:
The DA and PDO should use identical benchmarks when publishing felony-case statistics.
R3b:
The DA and PDO should start tracking cases for special attention when they have been in the process for six months, starting by Dec. 31, 2018. Memorandum 8/21/2018
R3c:
The DA should publish an annual report on the number of felony cases that remain unresolved after six months and include estimates on how many of those cases could be resolved within 12 months, starting Dec. 31, 2018.
R3d:
The PDO should publish an annual report on the number of felony cases that remain unresolved after six months and include estimates on how many of those cases could be resolved within 12 months, starting Dec. 31, 2018.
R3e:
The Santa Clara County Board of Supervisors should require the PDO to publish an annual report on the number of felony cases that remain outstanding after six months, and include estimates on how many of those cases could be resolved within 12 months, starting Dec. 31, 2018.
F4:
The offices of the Public Defender, Alternate Defender and Independent Defense Counsel often do not enter a plea in felony cases at the first arraignment hearing, which slows felony case dispositions.
Related Recommendations (1)
R4:
Santa Clara County should direct the offices of the Public Defender, the Alternate Defender and the Independent Defense Counsel to report annually on the average time from the filing of charges to the entry of a plea in its felony cases, and provide comparison figures for the counties in Table 3, starting with the 2019 fiscal year. Response to Finding and Recommendation 4: The PDO disagrees with Finding 4. While it is true that the PDO and ADO in general do not enter pleas at the first arraignment date, there are many very good reasons why this is the practice, and it does not contribute to delay. Entering a plea triggers statutory timelines for preliminary examination. Many cases settle prior to a preliminary examination. This is possible 4 8/21/2018 Memorandum because not entering a plea at the first court date allows time for discovery, investigation, ordering of records, and discussion with clients, which frequently result in an early plea without victims, witnesses, or police officers having to come to Court to testify unnecessarily. That work must be done to ensure constitutionally sound representation, and it is preferable to do it early on in the case so that counsel can advise clients whether to negotiate a disposition or proceed to trial. A plea at arraignment would preclude that work being completed prior to the preliminary hearing, potentially having the unintended consequence of increasing inefficiency and expense. For example, additional court appearances, including time-consuming formal preliminary hearings, would likely increase cost and waste time that could be focused on preparing and resolving cases. . 5 . . County of Santa Clara Office of the County Executive County Government Center, East Wing 70 West Hedding Street, 11th Floor San Jose, California 95110 (408) 299-5105 Date: August 10, 2018 To: Miguel Marquez, Chief Operating Officer From: Garry Herceg, Deputy County Executive Adopted: 08/28/2018 Subject: Response to Civil Grand Jury Follow Up Report Justice Still Delayed Please accept this response to the to the Santa Clara County Civil Grand Jury Report dated June 21, 2018.
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Findings & Recommendations
4 findings
F1:
There were no tangible benefits from the 2016 recounts because no outcomes were changed. The potential intangible benefits, comfort in not finding evidence of errors, can be far more cost-effectively accomplished by well-known other means.
F2:
The June 2016 pilot did not provide an adequate basis for the County to extend the recount pilot to the November 2016 General Election. The recount was conducted after certification when there was adequate staff, time and physical space. By being forced to complete any full manual recounts prior to certification, there was insufficient time, staff and physical space to complete any of the manual recounts.
F4a:
The County's use of a 0.5% (one-half of 1 percent) or 25-vote threshold should have been based on empirical evidence or statistical analysis of prior election results.
F4b:
The County's use of a 0.25% (one-quarter of 1 percent) threshold should have been based on empirical evidence from the 2016 elections. Registrar of Voters' Response to Findings 1, 2, 4a, and 4b: The Registrar of Voters can neither agree nor disagree with these findings. Automatic recounts are conducted pursuant to a Board of Supervisors' policy. This is a policy decision for the Board of Supervisors. Board of Supervisors: Mike Wasserman, Cindy Chavez, Dave Cortese, Ken Yeager, S. Joseph Simitian
Additional Recommendations
5
Not linked to specific findings.
R1a:
The County should eliminate its automatic recounts policy and remove Section 3.63 from its policy manual before the November 2018 election.
R1b:
If the County rejects Recommendation 1a, then the County should explore whether it can adopt a form of risk-limiting audit for each automatic recount and approve the lease of state certified equipment, physical space, as well as hiring and training of additional staff necessary to complete any recounts prior to certification.
R1c:
Pending passage of AB 2125, the County should request authorization from the SOS to adopt a risk-limiting audit in place of the state mandated 1% sample of precincts audit, beginning with the March 3, 2020 statewide primary election.
R1d:
Upon implementation of a risk-limiting audit, the automatic recount policy should be ended if it has not been canceled previously.
R4:
If the County rejects Recommendation 1a, then the County should, by June 30, 2019, complete an analysis of thresholds, both percentage and vote count, so that the selection of triggers is based on statistically defensible evidence. Registrar of Voters' Response to Recommendations 1a, 1b, 1c, 1d, and 4: Automatic recounts are conducted pursuant to a Board of Supervisors' policy. The Registrar of Voters will implement whichever recount policy is enacted by the Board of Supervisors. . . Board of Supervisors: Mike Wasserman, Cindy Chavez, Dave Cortese, Ken Yeager, S. Joseph Simitian
Findings & Recommendations
2 findings
F1:
- The County's AB 71-required criminal justice reporting surpasses that of many nationwide. However, the presence of mental illness in a given incident report is not mandated by AB 71. Reporting this data would assist law enforcement agencies in understanding the relationship between mental illness and officer-involved shootings and help in revising their training programs. Response to Finding 1 – Agree.
Related Recommendations (1)
R1:
- Law enforcement agencies submitting AB 71-required data should report, to the extent possible, whether mental illness was involved in their use of force data, starting in 2019. This applies to all the agencies reviewed by the Grand Jury, which are the Santa Clara County Sheriff's Office, the Sunnyvale Department of Public Safety and the following law enforcement agencies: Campbell, Gilroy, Los Altos, Los Gatos-Monte Sereno, Milpitas, Morgan Hill, Mountain View, Palo Alto, San Jose and Santa Clara. Response to Recommendation 1 - Agree.
F2:
- The Grand Jury found that training in crisis intervention and de-escalation techniques beyond what is included in the POST Basic Police Academy helps improve the outcome of law enforcement contacts with the mentally ill. Response to Finding 2 - Agree
Related Recommendations (4)
R2A:
- The law enforcement agencies of Gilroy, Los Altos, Los Gatos-Monte Sereno, Milpitas, Morgan Hill, Mountain View, Palo Alto, Sunnyvale and San Jose, and the Santa Clara County Sheriff's Office, should prepare a plan to ensure that all their officers receive POST-approved Crisis Intervention Training and De-Escalation technique training, beyond the training included in the POST Basic Police Academy, by the end of calendar 2018. Response to Recommendation 2A - It is already the policy of the Department to provide Crisis Intervention Training and De-Escalation technique training, beyond the training included in the POST Basic Police Academy, to every officer as soon as is practicable after hire. All but four Palo Alto Police officers have already received the above-prescribed POST-approved Crisis Intervention Training and De-Escalation technique training, beyond the training included in the POST Basic Police Academy; a plan is already in place for the remaining four officers to receive the training in the very near future.
R2B:
- The law enforcement agencies of Gilroy, Los Altos, Los Gatos-Monte Sereno, Milpitas, Morgan Hill, Mountain View, Palo Alto, Sunnyvale and San Jose, and Santa Clara County, should provide funding for their law enforcement agencies to complete POST-approved Crisis Intervention Training and De-Escalation technique training, beyond the training included in the POST Basic Police Academy, by June 30, 2019. Response to Recommendation 2B - It is already the policy of the Department to provide funding on an annual basis dedicated to POST approved Crisis Intervention Training and De-escalation Training, beyond the training included in the POST Basic Police Academy. Police Department staff will continue to dedicate funding in the Fiscal Year 2019-20 budget to allow any not-yet-trained officers (and as many dispatchers as practicable) to complete POST-approved Crisis Intervention Training and De- Escalation technique training, beyond the training included in the POST Basic Police Academy, as part of the department training plan.
R2C:
- The following law enforcement agencies should execute their plan to ensure that all officers receive POST-approved Crisis Intervention Training and De-Escalation technique training, beyond training included in the POST Basic Police Academy, by June 30, 2020: Gilroy, Los Altos, Los Gatos-Monte Sereno, Milpitas, Morgan Hill, Mountain View, Palo Alto, Sunnyvale and San Jose, and the Santa Clara County Sheriff's Office. Response to Recommendation 2C - It is already the policy of the Department to provide Crisis Intervention Training and De-Escalation technique training, beyond the training included in the POST Basic Police Academy, to every officer as soon as is practicable after hire. All but four Palo Alto Police officers have already received the above-prescribed POST-approved Crisis Intervention Training and De-Escalation technique training, beyond the training included in the POST Basic Police Academy; a plan is already in place for the remaining four officers to receive the training in the very near future. As part of the 2018 POST PSP training cycle, all officers already completed a two-hour Tactical Communications training block, which included elements of crisis intervention training and concepts. Crisis Intervention Training (to include mental health awareness, tactical communication, and de- escalation techniques) is on the Department's POST Perishable Skills Program (PSP) training cycle that starts on January 1, 2019 and ends December 31, 2020.
R2D:
- The following law enforcement agencies should include Crisis Intervention Training and De-Escalation technique training in their Continuing Professional Perishable Skills and Communications training: Santa Clara County Sheriff's Office, the Sunnyvale Department of Public Safety and the following law enforcement agencies: Campbell, Gilroy, Los Altos, Los Gatos-Monte Sereno, Milpitas, Morgan Hill, Mountain View, Palo Alto, San Jose and Santa Clara. Response to Recommendation 2D - It is already the practice of the Department to include Crisis Intervention Training and De-Escalation technique training in its Continuing Professional Perishable Skills and Communications training. As part of the 2018 POST PSP training cycle, all officers - and some dispatchers and parking enforcement officers - already completed a two-hour Tactical Communications training block, which included elements of crisis intervention training and concepts. Crisis Intervention Training (to include mental health awareness, tactical communication, and de- escalation techniques) is on the Department's POST Perishable Skills Program (PSP) training cycle that starts on January 1, 2019 and ends December 31, 2020. All officers, and as many dispatchers and parking enforcement officers as is practicable, will receive additional training during this cycle. . . . .
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Findings & Recommendations
20 findings
F1a:
Lack of housing near employment centers worsens traffic congestion in the County and increases the urgency to add such housing. Cities to respond are Campbell, Cupertino, Gilroy, Los Altos, Los Gatos, Milpitas, Mountain View, Palo Alto, San Jose, Santa Clara and Sunnyvale.
F1b:
Mass transit stations (Caltrain, VTA, BART) create opportunities for BMR units. Cities to respond are Campbell, Gilroy, Milpitas, Morgan Hill, Mountain View, Palo Alto, San Jose, Santa Clara and Sunnyvale.
F1c:
Density bonus programs are not being used aggressively enough to produce the needed BMR units within one-half mile of transit hubs. Cities to respond are Campbell, Gilroy, Milpitas, Morgan Hill, Mountain View, Palo Alto, San Jose, Santa Clara and Sunnyvale.
F2a:
Employers in the County have created a vibrant economy resulting in an inflated housing market displacing many residents. Agencies to respond are all 15 cities and the County.
F2b:
Contributions to BMR housing from employers in the County are not mandated nor evenly shared. Agencies to respond are all 15 cities and the County.
F3a:
RHNA sub-regions formed by several San Francisco Bay Area counties enable their cities to develop promising means to meet their collective BMR requirements. Such sub-regions can serve as instructive examples for cities in the County. Agencies to respond are all 15 cities.
F3b:
Developers are less willing to consider BMR developments in cities with the County’s highest real estate values because these developments cannot meet their target return on investment. Cities to respond are Los Altos, Los Altos Hills, Los Gatos, Monte Sereno, Palo Alto and Saratoga.
F3c:
More BMR units could be developed if cities with lower housing costs form RHNA sub- regions with adjacent cities with higher housing costs. Responding agencies are all 15 cities.
F3d:
High-cost/low-cost RHNA sub-regions would be attractive to low-cost cities if they are compensated by high-cost cities for improving streets, schools, safety, public transportation and other services. Cities to respond are Gilroy, Milpitas, Morgan Hill and San Jose.
F3e:
High-cost/low-cost RHNA sub-regions could be attractive to high-cost cities because they could meet their BMR requirements without providing units in their cities. Cities to respond are Campbell, Cupertino, Los Altos, Los Altos Hills, Los Gatos, Monte Sereno, Mountain View, Palo Alto, Santa Clara, Saratoga and Sunnyvale.
F4a:
Commercial linkage fees can be an important tool to generate critical revenues to support BMR housing. Cities to respond are Campbell, Milpitas, Los Gatos, Los Altos and San Jose.
F4b:
Use of commercial linkage fees is overdue and could be expected to substantially increase BMR units. Cities to respond are Campbell, Milpitas, Los Gatos, Los Altos and San Jose.
F5a:
Uneven BMR achievements among cities is caused in part by varying inclusionary BMR unit percentage requirements. Agencies to respond are all 15 cities and the County.
F5b:
Inclusionary ordinances in cities having only a small number of potential multi-unit developments would generate too few BMR units to justify their passage. Cities to respond are Los Altos Hills, Monte Sereno and Saratoga.
F6:
In-lieu fees, when offered as an option, are too low to produce the needed number of BMR units and delay their creation. Cities to respond are Campbell, Cupertino, Milpitas, Mountain View, Palo Alto, San Jose, Santa Clara and Sunnyvale.
F7:
NIMBY (Not in My Backyard) opposition adversely affects the supply of BMR housing units. Agencies to respond are all 15 cities and the County.
F8:
It is unnecessarily difficult to confirm how many BMR units are constructed in a particular year or RHNA cycle because cities and the County only report permitted units. Agencies to respond are all 15 cities and the County.
F9:
Accessory Dwelling Units (ADUs) offer a prime opportunity for cities with low housing density and limited developable land to produce more BMR units. Cities to respond are Los Altos, Los Altos Hills, Los Gatos, Monte Sereno and Saratoga.
F10:
Lack of funding mechanisms to create BMR housing has restricted BMR achievement by cities with limited commercial development or developable land. Cities to respond are Los Altos Hills, Monte Sereno and Saratoga.
F11:
The VTA is a valuable model for effectively generating BMR housing on publicly owned property. Agencies to respond are the County and the SCVWD.
Additional Recommendations
19
Not linked to specific findings.
R1a:
To improve jobs-to-housing imbalances, the cities of Palo Alto, Santa Clara, Milpitas, Mountain View and Sunnyvale should identify, by June 30, 2019, parcels where housing densities will be increased. The identification should include when projects are expected to be permitted and the number of BMR units anticipated for each parcel.
R1b:
Cities should identify parcels within one-half mile of a transit hub that will help them meet their LI and moderate-income BMR objectives in the current RHNA cycle, by the end of 2019. Cities to respond are Campbell, Gilroy, Milpitas, Morgan Hill, Mountain View, Palo Alto, San Jose, Santa Clara and Sunnyvale.
R1c:
Cities should revise their density bonus ordinances to provide bonuses for LI and moderate- income BMR units that exceed the minimum bonuses required by State law for parcels within one-half mile of a transit hub, by the end of 2020. Cities to respond are Campbell, Gilroy, Milpitas, Morgan Hill, Mountain View, Palo Alto, San Jose, Santa Clara and Sunnyvale.
R2a:
The County should form a task force with the cities to establish housing impact fees for employers to subsidize BMR housing, by June 30, 2019. Agencies to respond are all 15 cities and the County.
R2b:
Every city in the County should enact housing impact fees for employers to create a fund that subsidizes BMR housing, by June 30, 2020. Agencies to respond are the County and all 15 cities.
R3a:
Every city in the County should identify at least one potential RHNA sub-region they would be willing to help form and join, and report how the sub-region(s) will increase BMR housing, by the end of 2019. Agencies to respond are all 15 cities.
R3b:
A RHNA sub-region should be formed including one or more low-cost cities with one or more high-cost cities, by the end of 2021. Agencies to respond are all 15 cities.
R3c:
High-cost cities and the County should provide compensation to low-cost cities for increased public services required for taking on more BMR units in any high-rent/low-rent RHNA sub- region, by the end of 2021. Agencies to respond are Campbell, Cupertino, Los Altos, Los Altos Hills, Los Gatos, Monte Sereno, Mountain View, Palo Alto, Santa Clara, Saratoga, Sunnyvale and the County.
R4:
Campbell, Milpitas, Los Gatos, Los Altos and San Jose should enact commercial linkage fees to promote additional BMR housing, by June 2019.
R5:
Inclusionary BMR percentage requirements should be increased to at least 15% in Gilroy, Los Altos, Los Gatos, Milpitas, Morgan Hill, Palo Alto and Sunnyvale, by the end of 2019.
R6:
Cities with an in-lieu option should raise the fee to at least 30% higher than the inclusionary BMR equivalent where supported by fee studies, by the end of 2019. Cities to respond are Campbell, Cupertino, Milpitas, Mountain View, Palo Alto, San Jose, Santa Clara and Sunnyvale.
R7:
A task force to communicate the value and importance of each city meeting its RHNA objectives for BMR housing should be created and funded by the County and all 15 cities, by June 30, 2019.
R8:
All 15 cities and the County should annually publish the number of constructed BMR units, starting in April 2019.
R9a:
ADU creation should be encouraged by decreasing minimum lot size requirements and increasing the allowed unit maximum square footage to that prescribed by state law, by the end of 2019. Cities to respond are Los Altos, Los Altos Hills, Los Gatos, Monte Sereno and Saratoga.
R9b:
Increasing BMR unit creation by incentivizing long-term affordability through deed restrictions for ADUs should be adopted, by the end of 2019. Cities to respond are Los Altos, Los Altos Hills, Los Gatos, Monte Sereno and Saratoga.
R10a:
Residential development impact fees to fund BMR developments should be enacted by the cities of Los Altos Hills, Monte Sereno and Saratoga, by the end of 2019.
R10b:
Parcel taxes to fund BMR developments should be brought as a ballot measure to the voters of the cities of Los Altos Hills, Monte Sereno and Saratoga, by the 2020 elections.
R11a:
The County should identify or create an agency, modeled after the VTA’s Joint Development Program, to coordinate partnerships between developers and both the SCVWD and the County, for the development of BMR housing, by June 30, 2019.
R11b:
Parcels suitable for BMR housing should be offered for development by the SCVWD and the County, by the end of 2019.
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Findings & Recommendations
9 findings
F1:
Alum Rock Union Elementary School District Board Trustees Herrera, Marquez and Tran, by action and/or inaction, have subjected the District to financial peril, public scorn and distrust.
Related Recommendations (1)
R1:
Trustees Herrera, Marquez and Tran should immediately resign their positions on the Board.
F2:
District’s legal counsel concluded that Measure I and Measure J Construction Management contracts between the District and Del Terra likely violate Government Code Section 1090.
Related Recommendations (2)
R2a:
The Board should terminate the Measure I and Measure J Construction Management contracts between the District and Del Terra by Oct. 1, 2018.
R2b:
The District should retain an outside legal consultant by Oct. 1, 2018, to consider options to evaluate remedies against Del Terra.
F3:
The District does not consistently use best practices in awarding contracts.
Related Recommendations (1)
R3:
The District should immediately begin using competitive bidding (e.g., RFP/RFQ) for all construction projects and professional services.
F4:
Using the same contractor for both Construction Management and Program Management is not an accepted best practice and, according to the District’s legal consultant, can put the District in financial and legal jeopardy.15
Related Recommendations (2)
R4a:
The District should enact a Board policy prohibiting the award of future Construction Management and Program Management contracts to the same company, by Dec. 1, 2018.
R4b:
The District should award all future Construction Management and Program Management contracts to unrelated contractors.
F5:
The Board has repeatedly not followed the Brown Act requirements.
Related Recommendations (1)
R5:
The Board should obtain comprehensive Brown Act training from a qualified third party, by Dec. 31, 2018, and within 30 days of the swearing in of new Trustees.
F6:
The Board failed to follow their own Board By-Laws on numerous occasions.
Related Recommendations (1)
R6:
All current Board members should sign a declaration saying they have read, understood and will comply with the Board’s By-Laws, and any subsequent revisions, by Sept. 30, 2018. Future Trustees should sign the same declaration within 30 days of their swearing in.
F7:
The Board did not adequately vet all applicants in the selection of the current General Counsel. Legal memorandum, Nov. 8, 2017, from Rogelio Ruiz to District Superintendent; https://www.mercurynews.com/2017/11/16/del-terra-contracts-illegal-alum-rocks-own-attorney-tells-its- board/
Related Recommendations (1)
R7:
The Board should terminate the contract with its General Counsel and use a competitive process (RFP/RFQ) that includes a proper vetting mechanism to hire new General Counsel, by Dec. 31, 2018.
F8:
The Grand Jury commends District Superintendent Bauer for persevering during her four years while staying committed to improving student education and parental involvement.
F9:
The Grand Jury commends Trustees Quintero and Martinez for their continuing efforts to steer the Board in a positive direction. REQUIRED RESPONSES Pursuant to Penal Code sections 933 and 933.05, the Grand Jury requests responses as follows: From the following governing bodies: Responding Agency Finding Recommendation Alum Rock Union Elementary School District 1, 2, 3, 4, 5, 6, 7 1a, 1b, 2, 3, 4, 5, 6, 7 From the following individuals: Responding Individual Finding Recommendation Alum Rock Union Elementary School District 1, 2, 3, 4, 5, 6, 7 1a, 1b, 2, 3, 4, 5, 6, 7 Trustee Esau Herrera Alum Rock Union Elementary School District 1, 2, 3, 4, 5, 6, 7 1a, 1b, 2, 3, 4, 5, 6, 7 Trustee Dolores Marquez Alum Rock Union Elementary School District 1, 2, 3, 4, 5, 6, 7 1a, 1b, 2, 3, 4, 5, 6, 7 Trustee Khanh Tran
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Findings & Recommendations
9 findings
F1:
Disagree. This is a political opinion masquerading as a finding of fact. Expressing such political opinions in a formal Grand Jury report is inconsistent with the the purpose and statutory authority of a Civil Grand Jury, and unworthy of its time and expenditure of its assets.
Related Recommendations (1)
R1:
Disagree, This recommendation is rather arrogant in its conclusion, as it maintains that the judgment of a few men - who do not reside in East San Jose nor send their children to East San Jose schools- should prevail and be substituted for the judgment of East San Jose parents.
F2:
Disagree. This subcommittee of the Grand Jury has misread the relevant report of legal counsel, or perhaps the subcommittee was influenced by the political aspects surrounding the issue.
Related Recommendations (1)
R2a:
& 2b Disagree. Given the self-inflicted misunderstanding of legal counsel's report, this recommendation becomes inapplicable. The District currently has a General Counsel who has substantial experience in school law, and thus is more than capable of providing legal advice to the District on this issue.
F3:
Disagree. The Board is regularly informed by the Superintendent and the Assistant Superintendent of Business that contracts are awarded according to law and Board regulation.
Related Recommendations (1)
R3:
Disagree in part. The Board is regularly informed by the Superintendent and the Assistant Superintendent of Business that contracts are awarded according to law and Board regulation. Competitive bidding for specific professional services is not required, nor necessarily recommended, for such services.
F4:
Disagree. Such a practice is not uncommon and is recommended according to the needs of the particular public agency.
Related Recommendations (1)
R4a:
& 4b Disagree. The Board should take action that is in the best interest of the District. It should not artificially limit its options because of the political differences of a limited number of adults.
F5:
Disagree. The subcommittee of the Grand Jury is simply wrong on the facts, and thus is incorrect in its conclusion.
Related Recommendations (1)
R5:
Agree. I have attended such training in each year of my service as a trustee, in addition to training on other educational issues. I am presently scheduled to attend a Brown Act specific training session in October. (ENDORSED) SEP
F6:
Disagree. The subcommittee of the Grand Jury is simply wrong on the facts, and thus is incorrect in its conclusion. The subcommittee reads into board regulations content that is simply not present, and so the subcommittee offers it own conclusion of what it feels should be the end result. Such an approach dangerously veers into political conclusions, and is inconsistent with the duty and authority of a Civil Grand Jury.
Related Recommendations (1)
R6:
Disagree in part. Signing a declaration as recommended by the subcommittee would accomplish very little, or nothing, to address the concern of having a trustee be acquainted with Board bylaws. Instead, the Board should schedule an annual Board retreat to provide training in all aspects of board governance, or ensure that trustees attend at least one training school board conference.
F7:
Disagree. The Board had more than adequate time to review and assess the material submitted by General Counsel applicants. The sense of dissatisfaction and expression of related concerns are more political in nature, reflecting the political differences of adults.
Related Recommendations (1)
R7:
Disagree. The Board had more than adequate time to review and assess the material submitted by General Counsel applicants. The sense of dissatisfaction and expression of related concerns are more political in nature, reflecting the political differences of adults. Moreover, competitive bidding for such professional services is not necessarily a recommended best practice.
F8:
Neither agree nor disagree. "Staying committed to improving student education and parental involvement" should be the minimum expectation of a school district Superintendent. Meeting such minimum expectations is not a substantial reason for commendation.
F9:
Disagree. Only one trustee, Andres Quintero, engages in juvenile political tantrums during public meetings, talking and yelling over other trustees just to get his own political opinion out. If a student acted like that in a classroom, the teacher would quickly send that youngster to the Principal's office. If a member of the Superintendent's Cabinet acted in such a manner, the Superintendent would take steps to remove that offending adult from the educational team. It is somewhat bizarre that members of the subcommittee (who claim to have attended a number of board meetings) feel spiritually compelled to commend such behavior. Such "finding" does not inspire confidence in the dignity and credibility of the Civil Grand Jury. Esau Ruig Herrera . e- . . .
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Findings & Recommendations
8 findings
F1a:
There is an inherent jurisdictional conflict between an appointed superintendent and an elected Board of Education that fosters governance disunity.
F1b:
The previous four appointed Superintendents were separated from employment by the BOE in large part due to conflicts over BOE and Superintendent responsibilities.
F1c:
The BOE has employed five Superintendents in the last 11 years, a high turnover rate compared to counties with an elected Superintendent.
F1d:
The high Superintendent turnover has wasted more than $1 million of taxpayer money.
F1e:
The short tenure of the Superintendent has contributed to general dissatisfaction with the quality of services provided by the County Office of Education.
F1f:
Santa Clara County lacks any written provision of law designating the manner of selecting the County Superintendent of Schools, as addressed in California Constitution Article IX, Section 3.
F1g:
Citizens are entitled to clarity as to the manner of selecting the County Superintendent of Schools through a written provision of law.
F2:
Santa Clara County does not specify the manner of selecting the County Board of Education in its Charter or in any other manner as required by California Education Code, Section 1000.
Related Recommendations (1)
R2:
The Santa Clara County Board of Supervisors should provide for the manner of selection of the County Board of Education by Dec. 31, 2018, or, if they elect to do so by Charter, by the 2020 primary election ballot.
Findings & Recommendations
5 findings
F1:
There were no tangible benefits from the 2016 recounts because no outcomes were changed. The potential intangible benefits, comfort in not finding evidence of errors, can be far more cost-effectively accomplished by well-known other means.
F2:
The June 2016 pilot did not provide an adequate basis for the County to extend the recount pilot to the November 2016 General Election. The recount was conducted after certification when there was adequate staff, time and physical space. By being forced to complete any full manual recounts prior to certification, there was insufficient time, staff and physical space to complete any of the manual recounts.
F3:
The Registrar of Voters should be commended for its extraordinary efforts with the November 2016 recounts. Because of the unprecedented magnitude of the recounts, managers and staff worked excessive overtime hours – nights, weekends and holidays.
F4a:
The County’s use of a 0.5% (one-half of 1 percent) or 25-vote threshold should have been based on empirical evidence or statistical analysis of prior election results.
F4b:
The County’s use of a 0.25% (one-quarter of 1 percent) threshold should have been based on empirical evidence from the 2016 elections.
Additional Recommendations
6
Not linked to specific findings.
R1a:
The County should eliminate its automatic recounts policy and remove Section 3.63 from its policy manual before the November 2018 election.
R1b:
If the County rejects Recommendation 1a, then the County should explore whether it can adopt a form of risk-limiting audit for each automatic recount and approve the lease of state certified equipment, physical space, as well as hiring and training of additional staff necessary to complete any recounts prior to certification.
R1c:
Pending passage of AB 2125, the County should request authorization from the SOS to adopt a risk-limiting audit in place of the state mandated 1% sample of precincts audit, beginning with the March 3, 2020 statewide primary election.
R1d:
Upon implementation of a risk-limiting audit, the automatic recount policy should be ended if it has not been canceled previously.
R2:
None
R4:
If the County rejects Recommendation 1a, then the County should, by June 30, 2019, complete an analysis of thresholds, both percentage and vote count, so that the selection of triggers is based on statistically defensible evidence. APPENDICES The June 2016 Taxpayer-Funded Recount The Recount Results50 As shown in Table 2, although the number of votes changed for each of the candidates, the outcome (winner) was left unchanged. San Jose City Council Manh Percent Percent Lan Diep Difference Nguyen Difference Ballots Difference (votes) (votes) District 4 (votes) (Votes)51 (Ballots) Original 8,687 8,723 36 0.2068% 19,883 0.1811% Recount 8,685 8,697 12 0.0690% 20,116 0.0597% Original-Recount (Difference) 2 26 24 0.1377% 233 0.1214% Table 2 June, 2016 Primary Election Recount Results Analysis The difference in votes between the original tally and the recount for candidate Nguyen was two votes. The difference in votes between the original tally and the recount for candidate Diep was 26 votes. The difference in votes between the two candidates for the original tally was 36 and for the recount 12. Although the vote counts changed by 24 votes between the initial tally and the recount, a change of 0.1377%, there was no change in the winner of the election. Another way of looking at these contests is in ballots counted. There were 233 more ballots counted during the recount than during the initial tally. That amounts to a difference of 0.12%. The difference in numbers of ballots counted between the initial tally and the recount is primarily due to the use of a multi-card ballot. In this election, the San Jose District 4 contest appeared on the second card of the ballot. For purposes of counting the number of ballots cast, the ROV uses the first card of the ballot. It is not unusual for a voter to complete the first card of a ballot but leave the others blank. The ROV does not count blank ballots. The ROV calculates the number of ballots cast during a recount by adding up the votes for each candidate and the number of under votes and over votes. In the District 4 contest, Nguyen 50 The numbers in this table reflect the revised numbers provided to the Grand Jury by the ROV in February 2018 and differ from those in the ROV report (BOS 82471) for the June 2016 primary. The differences are in ballots cast not vote counts (explained below). The percent difference is the difference in votes divided by the total number of votes cast. received 8,687 votes, Diep received 8,723 votes; there were 2,424 under votes and 49 over votes for a total of 20,116. The ROV currently uses mark-sense technology (OPTECH) to optically scan paper ballots. In a study using a very similar OPTECH device, the average tabulation error (absolute difference between the initial count, utilizing OPTECH tabulation, and the recount) was 0.55% (approximately one-half of 1 percent).52 The same study found that the average tabulation error for manually counted ballots was 0.87% (approximately nine-tenths of 1 percent).53 What are some takeaways from this recount? The change in percentage of votes and the change in number of ballots counted between the initial tally and the recount numbers are well below the 0.5% (one-half of 1 percent) recount threshold. Both numbers are also well below published tabulation errors for machine and manual tallies.54 As mentioned above, manual counting has been found to be less accurate than machine tabulation in professional studies.55 Given the closeness of both results and the fact that the outcome was left unchanged, what can be said about the value of this recount without any evidence-based statistical analysis? 52 (Ansolabehere & Reeves, 2004, p. 5) 53 (Ansolabehere & Reeves, 2004, p. 6) 54 See the analysis for the November 2016 election below. 55 (Goggin, Byrne, & Gilbert, 2012) November 2016 Taxpayer-Funded Recounts In the context of this analysis, “results” is used to indicate the numbers of votes or ballots. The term “outcome” is used to refer to the winner of the contest. The term “ballot(s)” is used to refer to the physical ballots and voting records counted during either an initial tally or a recount. A ballot may be comprised of multiple physical pages and there may be multiple contests on each page. A ballot may be a paper record completed at a polling place or mailed- in or completed and delivered to a polling place on election day. A ballot may also come from a DRE (Direct-recording electronic) voting machine with a VVPAT (voter verifiable paper audit trail). The term original and initial are used interchangeably and refer to the election. Analysis In reviewing the data from the Nov. 8, 2016, general election, some important facts are worth noting. The largest difference between the vote counts in the original tally and the recount tally of the 10 contests, as a percentage of ballots cast56 was 0.55%. That occurred in the Monte Sereno City Council contest. In the original tally the leading candidate won by a margin of 12 votes. In the recount of that contest the same candidate won by 6 votes. That was the largest percentage change in a result, between the initial count and the recount, of any of the 10 contests recounted. The smallest change in the margin of a contest between the original tally and the recount of that contest was San Jose Unified School District, Measure Y. For that contest the margin of yes votes was calculated against the percentage of yes votes necessary for passage. In this case the measure needed 66.7% yes votes for passage. This contest qualified for a taxpayer- funded recount because the vote margin in the original count was only 0.42%.57 That margin is within the 0.5% margin for triggering a recount. The comparison between the differences in the original results and the recount results is done as percentages because it would make little sense to compare the absolute numbers between contests, the number of ballots cast varying by a wide range. For example, there were 108,757 ballots cast in the San Jose Unified School District Measure Y contest and 2,201 ballots cast in the Monte Sereno City Council contest. The average change in numbers of ballots between the original tally and the recount for the 10 contests is 0.0556%. The range between the highest percentage change in result and the smallest is 0.2711%. Note that this analysis uses absolute vote difference (margin) between original tally and recount in terms of ballots cast. This is the same calculation that was used to determine whether the contest qualified for a taxpayer- funded recount. 57 67.12% - 66.7% Margins and Absolute Differences By Contest Absolute Percentage Original Original Recount Original Vote Difference Difference Margin Count Of Margin Margin Between Between In Votes Ballots In Votes Contest /Ballots Cast Original & Original & Cast Cast Cast Recount Recount 1 San Jose Unified School District 67.12 0.0700% 95,774 67.19 0.07% 0.0000% 2 Los Altos City Council %6 0.0333% 18,028 %6 0 0.0001% 3 SPcahloo SADltDoi Ustnriifcite, dM Secahsouorle D Yi strict 198 0.4874% 40,622 201 3 0.0075% 4 Cupertino Union School District 218 0.3699% 58,942 222 4 0.0084% 5 City of Santa Clara, Chief of Police 105 0.2487% 42,226 110 5 0.0124% 6 Gilroy City Council 95 0.4871% 19,503 100 5 0.0261% 7 San Jose City Council, District 8 97 0.2424% 40,014 74 23 0.0569% 8 Gilroy Unified School District 52 0.2236% 23,259 34 18 0.0772% 9 Los Altos Hills City Council 19 0.3651% 5,204 14 5 0.0959% 10 Monte Sereno City Council 12 0.5452% 2,201 6 6 0.2711% Table 3 Margins and Absolute Differences By Contest This analysis uses the absolute difference in the calculations rather than net change. Net change indicates how many votes a candidate gained or lost (plus or minus) between the original count and the recount. The absolute numbers are the same as the net values. In the absolute numbers, the plus or minus sign has been removed. Whether or not a candidate’s votes increased or decreased is not critical when determining what the differences are between the counts. In fact, using the gain/loss numbers can be misleading. For example, if one candidate receives five more votes in the recount than they did in the original tally and the other candidate receives five fewer votes in the recount than they received in the initial tally, the numbers cancel each other out. Measuring the absolute difference between the original tally and the recount can enable an evaluation of the accuracy of the initial tally, the tabulation error.58 It should be noted that given the certified results, the Monte Sereno City Council contest would not have qualified for an automatic recount, using the certified result to calculate the percentage margin, because the margin of votes divided by ballots cast (0.5452%) was more than the threshold of 0.50% (one-half of 1 percent) if the basis for the recount was a percent difference threshold. However, that contest would have qualified under the 25-vote or fewer threshold. The difference in count between the original count and the certified results is a good reason to delay recounts until after certification. 58 (Ansolabehere, Burden, Mayer, & Stewart III, 2017) For the San Jose Unified School District Measure Y the percentage difference between the original and recount margins is used. This is to show the margins with respect to each other and with respect to the passing margin of 66.7%. The average percentage difference between the number of ballots cast/counted during the original count and the recounts is 0.0556%. Final Results of The November 8, 2016 Election Vote N of Difference Absolute Number Ballots Candidate Candidate as % of Contest Vote of Ballots Counted A B Total Difference Counted Using an Ballots RLA59 Cast Los Altos City Council 6,355 6,349 6 18,058 18,058 0.0332% City of Santa Clara, Chief of Police 17,618 17,531 87 42,134 7,760 0.2065% Gilroy Unified School District 8,439 8,387 52 23,235 6,915 0.2238% San Jose City Council, District 8 17,258 17,161 97 39,896 3,462 0.2431% Los Altos Hills City Council 1,821 1,802 19 5,201 2,154 0.3653% Cupertino Union School District 19,320 19,102 218 58,688 2,119 0.3715% San Jose Unified School District, 64,280 31,494 399 95,774 40 0.4163% MPaelaos Aulrteo YU nified School District 13,556 13,358 198 40,612 1,502 0.4875% Gilroy City Council 5,471 5,376 95 19,484 1,502 0.4876% Monte Sereno City Council 767 755 12 2,189 1,336 0.5482% Table 4 Final Results Of The November 8, 2016 Election Recounts What are some takeaways from this analysis? Simply conducting a full manual recount of a contest does not ipso facto mean that the recount is more accurate than the original count. It depends on the methods used in conducting a recount. Because there is inherent error in any count, and studies have shown that a hand count is generally less accurate than a machine tabulation, a manual recount cannot be considered any more accurate than the original machine tally. A full manual recount does not provide a cost-effective means of providing a high level of confidence that the original outcomes were either correct or not correct. Simply because the results of the original count and recount are close and did not change does not necessarily 59 These are the approximate number of ballots that would be counted, if no discrepancies are found, in an RLA at a 5% risk limit. mean that the outcome of the contest is correct. Only a statistically valid method of addressing possible errors in the original count and the recount can provide the necessary confidence in the outcome of a contest. In the above analysis the approximate number of ballots that would need to be counted using an RLA with a risk limit of 5% was calculated for each contest. Although this is only an approximation, the numbers of ballots that would have needed to be counted is far less than a full manual recount. The exception is the Los Altos City Council race where the margin of victory was so close that a full manual recount would have been needed. Pertinent California Election Code Information California Elections Code (ELEC) sections §15600 through §15649 govern statewide election recounts. There is no provision in California law for automatic countywide or local election recounts. That is, a county elections official may order a recount (under ELEC §15610) if both of the following apply: “(a) The elections official has reasonable cause to believe the ballots in the precinct have been miscounted.” “(b) The elections official has examined, under oath, the precinct board members or, in the case of ballots counted by a central counting system, the counting board members, and they are unable to explain the returns of their respective precincts.” There is provision in ELEC for voter-requested recounts. It must be requested within five days following the completion of the canvass. Elections official can charge the voter requesting the recount for the costs of that recount. ELEC §15627(a) specifies that if the vote was “cast or tabulated by a voting system,” then the entity making the request for a recount has the right to request that the recount be accomplished either manually or by the same system that was in the original vote. Furthermore, §15627(a) mandates: “Only one method of recount may be used for all ballots cast or tabulated by the same type of voting system.” Under certain specified conditions, the governor may order a state-funded manual recount for a contest involving a statewide office or state ballot initiative, at various vote margins. Legal authority for the Santa Clara County automatic recount pilots Recounts are governed under: California Elections Code - ELEC DIVISION 15. SEMIFINAL OFFICIAL CANVASS, OFFICIAL CANVASS, RECOUNT, AND TIE VOTE PROCEDURES [15000 - 15702] The state of California does not have a taxpayer-funded automatic recount provision. The California State Election Code (CSEC) does permit the County Registrar of Voters to perform a recount if they believe that an error has been made in the earlier count (CA Elections Code Div. Ch. Article 2 §15610). Under that authority, Santa Clara County adopted the automatic recount. The idea is that if an error were to occur, an automatic recount would determine if in fact that error was large enough to change the outcome of a contest. The County determined that its automatic recount pilot was permitted under the CSEC so long as it was performed during the canvass prior to the required certification of election results to the secretary of state. This was determined even though state-funded recounts must be performed after certification of the election in question. Further Discussion About Automatic Recounts Election law covering recounts varies from state to state. FairVote, a nonpartisan group that advocates for election reform, conducted a survey of state recount policies. In that survey FairVote lists 16 states plus the District of Columbia as having provisions for automatic recounts, while 34 states did not. Forty states and the District of Columbia allow for petitioning for a recount by a candidate.60 The laws governing recounts and the statistics stated here are for statewide elections but have general applicability to local elections. The FairVote survey found that statewide election recounts are rare. Of 4,687 elections in FairVote’s survey, there were 27 recounts, 15 of which it cited as being “consequential”. That is, the margin between the winning candidate and the losing candidate was 0.15% (fifteen- hundredths of 1 percent) or less. That study found that of those 27 recounts, only three resulted in a change in outcome (winner). Of relevance to local elections is the fact that recounts for contests in which there were relatively more voters resulted in a lower percentage change in the vote margin than in contests with relatively fewer voters. For example, in contests with greater than 2 million votes cast, the margin difference was an average of 0.016% (sixteen-thousandths of 1 percent). In contests where the total votes cast were less than one million, the change in the vote margin was an average of 0.039% (thirty-nine thousandths of 1 percent).61 The FairVote report does try to extrapolate from their statewide findings to local elections, however, although it does not provide any data to support its advice, the report recommends that a 0.5% (one-half of 1 percent) margin may be appropriate for small local electorates. The report recommends that for smaller states a 0.2% (two-tenths of 1 percent) trigger is appropriate and it recommends a 0.1% (one-tenth of 1 percent) threshold for larger states.62 There were 875,176 registered voters in Santa Clara County at the time of the Nov. 8, 2016, General Election.63 Santa Clara County has more registered voters than 13 states. That puts Santa Clara County into the category of a smaller state and consequently a threshold of 0.2% (two-tenths of 1 percent) for triggering an automatic recount could be justified based on the FairVote study recommendation. 60 (Ritchie & Smith, 2016, p. 11) 61 (Ritchie & Smith, 2016, p. 3) 62 (Ritchie & Smith, 2016, p. 14) 63 (ROV, 2017, p. 8) Risk-limiting Audits Explained Risk-limiting audits can be much more efficient, timely, and cost-effective than full recounts because an RLA enables election officials to count a sample of ballots until the auditors are convinced that there won’t be any change in the original outcome. The sample of ballots counted is generally far fewer than in a full hand recount (unless the margin is extremely small or the contest outcome is in fact incorrect) and thus can be completed faster and with fewer resources. “The risk component in RLAs is the maximum risk that elections officials are willing to take that the audit will not result in a full hand recount when a full hand recount would show that the apparent outcome is wrong.” 64 The basis for RLAs lies in sound statistical practice. The legislature typically decides how small a risk/chance they are willing to take, say 1% or 0.1%, that the audit will not change the outcome of an election when the original outcome is wrong. The RLA process dictates the size of the random sample that needs to be counted to reach the selected level of confidence, in light of what the audit finds as it progresses. The audit stops when the evidence that the outcome is correct is strong enough to meet the risk limit, or when a complete hand count has been conducted. The size of the sample is chosen using easily understood mathematical formulas, instead of a fixed percentage of precincts. Open source software for use by election officials to implement an RLA is readily available that requires minimal training.65 The desired confidence level is selected by the legislature; the mathematical mechanisms are well understood within the world of professional statisticians. This helps make the audit process transparent. The American Statistical Association (ASA), an organization of U.S. professional statisticians, has endorsed RLAs as a best practice for post-election audits.66 Colorado has had mandatory RLAs since November 2017 and Rhode Island requires RLAs as of 2018. In 2007, the California Secretary of State issued the Top-To-Bottom Review of California’s Voting Systems.67 An outgrowth of the Review and the Evaluation of Audit Sampling Models and Options for Strengthening California’s Manual Count68 were two pilot programs implementing RLAs in actual elections in the state of California. The initial pilot RLA program was conducted in 2008 and involved four elections in three counties: The first was conducted during the February 2008 primary election in Marin County; Marin, Santa Cruz and Yolo counties used RLAs in the November 2008 general elections.69 The RLAs were conducted in parallel with the state-mandated 1% of precincts post-election audit. 64 (Philip B Stark, 2009) 65 (Philip B. Stark, 2012) 66 (American Statistical Association Statement on Risk-Limiting Post-Election Audits, 4/17/10, 2010; Lindeman et al., 2008) 67 (California Secretary of State, 2007) 68 (Jefferson et al., 2007) 69 (Hall, 2009, p. 1) In 2010, AB 2023 became law, authorizing the California secretary of state to conduct the Post-Election Risk-Limiting Audit Pilot Program that eventually involved 11 counties. The 11 counties “… successfully completed their audits and confirmed the official election results by reviewing a relatively small number of individual ballots (e.g., a few dozen to a few hundred ballots). By contrast, the statutorily-mandated 1% manual tally conducted in the same elections provided little statistical evidence that the election outcomes were correctly tallied by the voting system, despite requiring substantially more ballots to be hand-counted and examined.”70 There are various ways to conduct RLAs. The 2011-2013 California pilot program used batch- level comparison audits, ballot-level comparison audits, and a ballot-polling audit. A ballot- polling audit examines randomly selected ballots until auditors have achieved the statistical confidence chosen by the election official. No special ballot counting equipment is necessary. A second type of RLA is a comparison audit. Here, outcomes are examined by comparing the original count of clusters of ballots to a hand count of the same clusters. For example, a precinct could be a cluster. In a ballot-level comparison audit, a cluster is composed of a single ballot. To implement ballot-level comparison audits, officials must have a means of comparing a manual interpretation of a ballot with the machine interpretation of that ballot. Ballot-level comparison audits require a way to match a human interpretation of a given paper ballot with how the machine interpreted that same ballot. The County does not now have this technology, but the ROV plans to release an RFP for new equipment in 2018 that appears to have the requisite functionality to enable the ROV to implement comparison RLAs. This new equipment is slated to be available for use in 2019.71 RLAs eliminate the need for automatic or other types of recounts because an RLA provides a desired level of confidence that the outcomes of contests are correct, generally with far less work than a full manual recount. Further, RLAs are far more efficient and cost-effective than full manual recounts (except in cases where the reported results are incorrect and the audit leads to a full manual recount). As is stated in the SOS report on the Pilot Program: “The adoption of laws and regulations permitting or requiring risk-limiting post-election audits will allow elections officials to use the new audit methods to confirm – or correct – official election results, which will help build public confidence in elections and may reduce the need for voter-requested manual recounts.”72 70 (California Secretary of State, 2014a, p. Exec. Summary) 71 (CACE, 2017) 72 (California Secretary of State, 2014a) Assessing Voter-intent Counting Mismarked Ballots What is a mismarked ballot? During the original ballot count by vote tabulating machines, certain ballots are rejected by the tabulating machines because a voter, who failed to follow the printed instructions, improperly marked a ballot, or the ballot card was badly damaged. For example, a voter who did not draw the required solid black line between the end-points next to a candidate’s name or ballot measure choice. Other mistakes include incomplete erasures, cross outs, hand- drawn lines, and arrows to indicate a choice. What happens to mismarked ballots? In the case of ballots rejected by the tabulating machine, a team of ROV workers, attempts to visually assess the voter’s intent. The result is the creation of a duplicate ballot that is properly marked, using the team's determination of voter intent. If voter intent is not unanimously agreed to by the team, the vote(s) for the questionable contest(s) are not counted. The duplicate ballot is then tabulated by machine. Once a mismarked ballot is replaced or discarded during the original count, it is not re- examined during a recount. The ROV estimates that less than 0.1% of ballots in Santa Clara County are replaced by team-decided voter intent in the experience of current ROV staff. The number of such replacement ballots are not recorded. November 2016 Recount Data Los Altos City Council Lynette Neysa Absolute Percent Ballots Percent Lee Eng Fligor Vote Difference Cast/ Difference Difference Votes Cast Counted Ballots Cast Original 6355 6349 6 0.0472% 18028 0.0333% Recount 6369 6363 6 0.0471% 18058 0.0332% Original-Recount 14 14 0 0.0001% 30 0.0001% Difference Palo Alto Unified School Melissa Heidi Absolute Percent Ballots Percent District, Governing Board Batan Emberling Vote Difference Cast/ Difference Caswell Difference Votes Cast Counted Ballots Cast Original 13556 13358 198 0.7357% 40622 0.4874% Recount 13580 13379 201 0.7456% 40612 0.4949% Original-Recount 24 21 3 0.0099% 10 0.0075% Difference Cupertino Union School Phyllis Gregory Absolute Percent Ballots Percent District Governing Board Vogel Anderson Vote Difference Cast/ Difference Difference Votes Cast Counted Ballots Cast Original 19320 19102 218 0.5674% 58942 0.3699% Recount 19267 19045 222 0.5795% 58688 0.3783% Original-Recount Change 53 57 4 0.0121% 254 0.0084% City of Santa Clara, Chief Michael J. Pat Nikolai Absolute Percent Ballots Percent of Police Sellers Vote Difference Cast/ Difference Difference Votes Cast Counted Ballots Cast Original 17618 17513 105 0.2989% 42226 0.2487% Recount 17625 17515 110 0.3130% 42134 0.2611% Original-Recount Change 7 2 5 0.0142% 92 0.0124% Gilroy City Council Paul V. Tom Fischer Absolute Percent Ballots Percent Kloecker Vote Difference Cast/ Difference Difference Votes Cast Counted Ballots Cast Original 5471 5376 95 0.8758% 19503 0.4871% Recount 5490 5390 100 0.9191% 19484 0.5132% Original-Recount 19 14 5 0.0433% 19 0.0261% Difference San Jose City Council Sylvia Jimmy Absolute Percent Ballots Percent District 8 Arenas Nguyen Vote Difference Cast/ Difference Difference Votes Cast Counted Ballots Cast Original 17258 17161 97 0.2818% 40014 0.2424% Recount 17254 17180 74 0.2149% 39896 0.1855% Original-Recount 4 19 23 0.0669% 118 0.0569% Change Gilroy Unified School BC Doyle Paul Nadeau Absolute Percent Ballots Percent District, Governing Vote Difference Cast/ Difference Board Difference Votes Cast Counted Ballots Cast Original 8439 8387 52 0.3090% 23259 0.2236% Recount 8428 8394 34 0.2021% 23235 0.1463% Original-Recount 11 7 18 0.1069% 24 0.0772% Difference Los Altos Hills City Roger Garo K. Absolute Percent Ballots Percent Council Spreen Kiremidjan Vote Difference Cast/ Difference Difference Votes Cast Counted Ballots Cast Original 1821 1802 19 0.5244% 5204 0.3651% Recount 1819 1805 14 0.3863% 5201 0.2692% Original-Recount 2 3 5 0.1381% 3 0.0959% Difference San Jose Unified School Yes No Percent Minus Ballots Difference District, Yes Needed To Cast/ Yes Org to Measure Y Pass Counted Recnt 66.7% Required To Pass Original 64280 31494 59.10% 7.5958% 108757 0.2600% Recount 64347 31531 59.37% 7.3333% 108389 0.2600% Original-Recount 67 37 0.26% 0.2625% 368 0.0000% Difference Monte Sereno City Curtis Rowena Absolute Percent Ballots Percent Council Rogers Turner Vote Difference Cast/ Difference Difference Votes Cast Counted Ballots Cast Original 767 755 12 0.7884% 2201 0.5452% Recount 765 759 6 0.3937% 2189 0.2741% Original-Recount 2 4 6 0.3947% 12 0.2711% Difference
Findings & Recommendations
10 findings
F1:
The Grand Jury found no advantage to having a separate DOC in the operation of the jails.
Related Recommendations (1)
R1B:
Santa Clara County Board of Supervisors should clarify the roles in jail management for: the Department of Correction, the Chief of Correction, the proposed correctional administrator position, the Undersheriff, the Office of Correction and Law Enforcement Monitoring, and the Community Correction and Law Enforcement Monitoring Committee. This should be done by Dec. 31, 2018.
F2A:
The Grand Jury found morale among correctional deputies is low due to chronic understaffing, mandatory overtime shifts and a new grievance system that deputies believe is open to abuse.
F2B:
The Grand Jury found a widespread perception among correctional deputies that they have diminished control over inmates in the jail, putting them at a disadvantage in performing their duties.
F2C:
The Grand Jury found that the Santa Clara County Sheriff’s Office has taken new steps in the past year to boost hiring, greatly reducing correctional deputy shortages at the Main Jail and Elmwood.
F3A:
The Grand Jury found there is an unmet need for training programs at the Main Jail and Elmwood geared to inmates serving multiyear sentences.
F3B:
The Grand Jury found there is an unmet need for vocational training programs at Elmwood geared to women inmates. The Grand Jury also found a gender bias in the limited program opportunities for women inmates, which fails to prepare them for transition to post-jail life in Santa Clara County.
F4:
The Grand Jury found the lack of understanding of the relationship between the recent rise in juvenile crime and lower incarceration rates prevents effective means to reduce juvenile crime.
F5A:
The San Jose Police Department, at the time of this report, was taking steps to eliminate the needless expense by updating outdated procedures for staffing its Pre-Processing Center with a sergeant on paid overtime.
F5B:
The San Jose Police Department puts itself at needless risk of a lawsuit from a detainee or a citizen’s complaint by not following BSCC procedures for restraining prisoners at its Pre- Processing Center.
F13:
http://www.scscourt.org/court_divisions/civil/cgj/2016/Responses/ResponseSCCSheriff092216.pdf 14 http://www.scscourt.org/court_divisions/civil/cgj/2016/Responses/ResponseSCCSheriff100416.pdf 15 http://www.scscourt.org/court_divisions/civil/cgj/2016/Responses/05.15.17%20Response%20SCC%20CO B%20-%20Mental%20Illness.pdf 16 https://www.sccgov.org/sites/probation/Documents/JPD%20Services%20Annual%20Report_2016_FINAL. pdf Prop 57, which lets judges instead of prosecutors decide if a juvenile will be tried in adult court. Also, 38% of the fiscal 2016 arrests and citations were lower level offenses or offenses by first-time offenders who went to the County’s impressive array of diversionary services (counseling and more) and therefore were not recorded as official arrests. The Juvenile Justice System remains focused on prevention-oriented and school-based programs and services. At the same time, the well-publicized decline in staffing at the San Jose Police Department (SJPD) is acknowledged as among factors in the lower arrest rates for both juveniles and adults. SJPD now is regaining staff, and the initial decline in arrests resulting from Props 47 and 57 has ended. The County DA reports a significant spike in juvenile offenses in calendar 2017. The DA says total juvenile filings rose 20% in 2017 to 1,399 from 1,162 in 2016. The filings are Welfare and Institutions Code Section 602 Petitions, for criminal acts, and violations of probation (VOP). This comes after four consecutive years of declines in filings. DA officials say the 2017 increase is even more dramatic than it appears because the new laws make it harder to file both 602 Petitions and VOPs. The early part of 2018 saw the trend continue. (See chart below) 316 Juvenile Crime Filings (Petitions) Jan. 1 thru March 5 224 238 204 2015 2016 2017 2018 Some types of crime saw big leaps in juvenile participation. The DA says in 2017 residential burglary jumped 128% to 185, auto theft accelerated 51% to 208, robbery rose 21% to 120 and carjacking more than tripled to 28. Organized groups of juvenile offenders were responsible for much of this increase, Probation, DA and law enforcement officials agree. But they don’t agree on some other things. Where Probation says as few as 10 youths accounted for a big chunk of the spike, DA officials attribute much of the increase to more than 50, and as many as 100, in the organized groups. Juvenile recidivism rates for the lowest-level offenders remains admirably low, at just 2% to 3%, but for the highest level of offender, it has risen to 43% in fiscal 2016 from 32% in fiscal 2015 and 40% in fiscal 2014. Law enforcement officials have expressed some frustration to the Grand Jury about a lack of programs for some repeat offenders who do commit the most serious crimes, since only the most serious offenders and violent felons can be sent to the state Division of Juvenile Justice (formerly the California Youth Authority). In Santa Clara County, incarcerated juvenile offenders go to Juvenile Hall or get assigned to the six- to eight-month James Ranch program. Officials see a need for programs that give repeat offenders a “time out,” which could mean moving them to a facility outside the county and thus away from potentially bad influences or, could mean offering an 18- to 24-month “step-down” program, similar to what’s offered by Contra Costa with its Youth Offender Treatment Program and Girls in Motion program. Probation officials, on the other hand, point to their success with diversion programs and their continued motivation to keep youths in environments more constructive than jails or ranches. “… Incarceration is the single-biggest predictor of criminality,” Laura Garnette, the 18 County Chief Probation Officer, recently told the San Jose Mercury News. Meanwhile, the County is part of an innovative state pilot program, SB 1004 , that makes use of one of the Juvenile Hall buildings, which otherwise has sat mostly vacant due to juvenile justice diversion efforts. Under the pilot program, being tested in five counties, this facility will house adult offenders ages 18-21. These inmates get access to the rehabilitative programs offered at Juvenile Hall. As of March, the program just housed four of these young- adult offenders, but it’s expected to house 10 males and 10 females shortly. William F. James Ranch (Inspection Oct. 5, 2017) The James Ranch is a locked detention facility that houses juveniles (ages 13-19) who have been committed by the Juvenile Court. Its program runs six to eight months. The Ranch houses males and females. Its capacity is 96, but according to officials the Ranch has been housing fewer youths in recent years. On the date of the Grand Jury’s visit, the Ranch housed 56 youths. Youths are categorized at Levels 1 through 4, advancing in levels based on participation in and compliance with the facility programs and rules (cooperation, 1 7 Recidivism refers to a new offense committed by an individual within a set period that can vary, and the start of the clock on the timing of recidivism varies for different programs. In general, this refers to a person committing a new offense within a year of release from an earlier offense. 18 https://www.mercurynews.com/2018/02/22/amid-juvenile-crime-spike-officials-work-to-meld-
Additional Recommendations
1
Not linked to specific findings.
R1A:
The Santa Clara County Board of Supervisors should transfer sole and exclusive authority over the County jails to the Santa Clara County Sheriff, by June 30, 2019.
Findings & Recommendations
5 findings
F1:
The County’s AB 71-required criminal justice reporting surpasses that of many jurisdictions nationwide. However, the presence of mental illness in a given incident report is not mandated by AB 71. Reporting this data would assist law enforcement agencies in understanding the relationship between mental illness and officer involved shootings, and help in revising their training programs.
Related Recommendations (1)
R1:
Law enforcement agencies submitting AB 71-required data should report, to the extent possible, whether mental illness was involved in their use of force data, starting in 2019. This applies to all the agencies reviewed by the Grand Jury, which are the Santa Clara County Sheriff’s Office, the Sunnyvale Department of Public Safety and the following law enforcement agencies: Campbell, Gilroy, Los Altos, Los Gatos-Monte Sereno, Milpitas, Morgan Hill, Mountain View, Palo Alto, San Jose and Santa Clara.
F2:
The Grand Jury found that training in crisis intervention and de-escalation techniques beyond what is included in the POST Basic Police Academy helps improve the outcome of law enforcement contacts with the mentally ill.
Related Recommendations (5)
R2A:
The law enforcement agencies of Gilroy, Los Altos, Los Gatos-Monte Sereno, Milpitas, Morgan Hill, Mountain View, Palo Alto, Sunnyvale and San Jose, and the Santa Clara County Sheriff’s Office, should prepare a plan to ensure that all their officers receive POST-approved Crisis Intervention Training and De-Escalation technique training, beyond the training included in the POST Basic Police Academy, by the end of calendar 2018. 1 4
R2B:
The law enforcement agencies of Gilroy, Los Altos, Los Gatos-Monte Sereno, Milpitas, Morgan Hill, Mountain View, Palo Alto, Sunnyvale and San Jose, and Santa Clara County, should provide funding for their law enforcement agencies to complete POST-approved Crisis Intervention Training and De-Escalation technique training, beyond the training included in the POST Basic Police Academy, by June 30, 2019.
R2C:
The following law enforcement agencies should execute their plan to ensure that all officers receive POST-approved Crisis Intervention Training and De-Escalation technique training, beyond training included in the POST Basic Police Academy, by June 30, 2020: Gilroy, Los Altos, Los Gatos-Monte Sereno, Milpitas, Morgan Hill, Mountain View, Palo Alto, Sunnyvale and San Jose, and the Santa Clara County Sheriff’s Office.
R2D:
The following law enforcement agencies should include Crisis Intervention Training and De- Escalation technique training in their Continuing Professional Perishable Skills and Communications training: Santa Clara County Sheriff’s Office, the Sunnyvale Department of Public Safety and the following law enforcement agencies: Campbell, Gilroy, Los Altos, Los Gatos-Monte Sereno, Milpitas, Morgan Hill, Mountain View, Palo Alto, San Jose and Santa Clara.
R2E:
The law enforcement agencies in the cities of Gilroy, Milpitas and Mountain View should expand their Crisis Intervention Training and De-Escalation technique training to include all of their officers, not just their Field Training Officers. 1 4
F3:
The Grand Jury found that in large classes, the 40-hour Crisis Intervention Training often does not provide enough time for all attendees to participate in the simulation exercises.
Related Recommendations (1)
R3:
The Santa Clara County Sheriff’s Office and the San Jose Police Department, as the County’s primary Crisis Intervention Training providers, should by Dec. 30, 2018, adjust class sizes in order to provide enough time for all attendees to participate in the simulation exercises.
F4A:
It is difficult to recruit sufficient numbers of behavioral health professionals to staff mobile Crisis Intervention Teams and assist law enforcement officers with individuals in crisis.
F4B:
Additional mobile Crisis Intervention Teams would be helpful to handle the frequency of law enforcement contacts with citizens suffering adverse mental health issues throughout the county.
* 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.