The Judicial Council and its staff are seeking to amend a rule of court to take authority for decision making regarding the allocation of trial court funds from the Trial Court Budget Advisory Committee (TCBAC), instead giving it to the Judicial Council's Committee on Accountability and Efficiency (A&E Committee). This is the committee, you will recall, that approved lavish raises for top AOC officials as its first official action under its then-chair, Justice Cantil-Sakauye. That committee is currently chaired by longtime Judicial Council insider, Justice Richard Huffman, and its meetings are for the most part "conducted electronically" and closed to the public.
The proposed rule amendment did not come to you in an "eblast" from the Judicial Council -- it was quietly placed on the Judicial Council's website for comment. Fortunately, it came to the attention of the TCBAC and others, including directors of the Alliance, who launched an aggressive campaign to crush this obvious power grab. In addition to taking budgetary authority from the TCBAC, the proposed rule would also eliminate the role of the A&E Committee in reviewing compensation for AOC employees, ostensibly because the Council is already conducting that review with the help of a hired consultant.
The TCBAC met yesterday in San Francisco and, although it was not an action item, voted to oppose the proposed amendment to Rule 10.63. We thank Judge Dodie Harman from San Luis Obispo for her motion that the committee take a formal position in opposition to the rule change, as well as TCBAC Chair Judge Laurie Earl, whose leadership helped to energize that opposition. The lone vote opposing the motion came from Orange County CEO Alan Carlson, never one to rock the AOC boat.
Below we have reprinted the comment in opposition to the rule that we submitted yesterday. We encourage you to submit your own comments in opposition in the event there are arguments that we omitted or that require emphasis. One might suspect that the proposed rule is dead now that so many have voiced opposition to it, but we remain concerned, at a minimum, that the Council will still push to take responsibility for overseeing AOC employee compensation from the A&E Committee. While we question that committee's ability to exercise independent oversight, considering its past inability to do so, some committee oversight is better than none and the Council should not be allowed to "compromise" on the issue regarding the TCBAC while leaving intact the portion of the proposed amendment that takes responsibility for AOC oversight away from the A&E Committee.
We will keep a close eye on this proposed rule and any other proposal designed to make the operations of the Judicial Council and its staff less accountable and transparent. The results of audits conducted by State Auditor Elaine Howle demand it.
Directors, Alliance of California Judges
Alliance of California Judges
May 18, 2015
Hon. Douglas P. Miller
Chair, Executive and Planning Committee
Re: Proposed amendments to Rules of Court, Rule 10.63 (SP15-03)
Dear Justice Miller:
We write to express our opposition to the proposal to give the Advisory Committee on Financial Accountability and Efficiency (the A&E Committee) the authority to determine the “appropriate uses” of expenditures to the trial courts from their main funding sources. In doing so, we add our voice to the voices of the many represented court employees who also oppose what can only be described as an unwarranted power grab. This new grant of power to the A&E Committee would come at the expense of the Trial Court Budget Advisory Committee (TCBAC), which currently performs that oversight function.
In opposing this proposed rule change, which was publicized only on the Executive and Planning Committee’s website and has been “fast-tracked,” we also join with the chair of the TCBAC, the Honorable Laurie Earl. We agree with Judge Earl that this proposed rule would strip authority from the committee that has gained expertise in budgetary matters and give it to a committee that lacks such expertise. We understand from multiple sources that this attempted power grab is being pushed by Chief of Staff Jody Patel and other members of the Judicial Council. The proposed rule change is a giant step backward in the Council's movement toward greater transparency and accountability.
We note at the outset that we take issue with the entire “judicial council model” of branch governance, under which the Chief Justice appoints most of the members of the various bodies that make vital decisions for the entire branch. Under the current system, the same small unrepresentative cohort is chosen time after time, term after term, to committee after committee. Dissenting voices are squelched; innovation is tamped down; “speaking with one voice” is the watchword. The result has been a lack of transparency; the takeover of key decision-making processes by the bureaucracy that was meant to serve the branch, not govern it; and catastrophically bad decision-making, of which the CCMS debacle is only the most conspicuous example.
Within the current flawed system, however, the Trial Court Budget Advisory Committee is the advisory body in the best position to speak for the trial courts. Its 34 members include a healthy mix of representatives from large and small counties. A&E, by contrast, has only 14 members. Its chair and vice-chair are appellate court justices, not trial court judges. The chair, Justice Huffman, is the ultimate Judicial Council insider, having served on the Council for 14 years. His is not the voice of reform. Nor would we expect that replacing him or other members of the committee through the usual appointment process would lead to a different result.
Moreover, the A&E Committee has failed to carry out its current charge, which does not bode well for its ability to handle any new responsibilities that the proposed rule change would confer upon it. As the State Auditor pointed out in her recent report:
“The Judicial Council did not ensure that the financial advisory committee fulfilled its intended purpose. . . . It is unclear how the financial advisory committee can ensure accountability of the AOC when it does not exist independently of the AOC, it does not review the AOC’s expenditures, and the AOC can override the financial advisory committee’s recommendations to the Judicial Council.” (California State Auditor Report 2014-107, p. 45.)
None of the proposed rule changes address any of these basic criticisms. Moreover, the A&E Committee is among the most secretive of the Judicial Council’s advisory bodies. According to its website, the committee met twice in 2014 and twice in 2015. Each of those meetings was conducted “by electronic means,” and a portion of each meeting was closed. By contrast, the TCBAC meets far more frequently and its meetings are open.
We also note one area in which the proposed rule change would actually strip authority away from the A&E Committee. The amendments to the rule would remove any A&E responsibility to review the AOC's compensation structure, ostensibly because “[t]he Judicial Council already is involved in review of Judicial Council staff compensation.” It appears that the AOC’s “classification and compensation study,” farmed out to a private vendor, is already behind schedule. The State Auditor’s report uncovered rampant bloat in AOC salaries. Somebody outside the inner circle really ought to have some say in how the AOC pays its staff.
When the State Auditor recommended changes to the Rules of Court that would bolster the advisory committee’s responsibilities and composition, she did not envision the removal of authority from an open, more responsive body to a reclusive and ineffective one. The proposal, if enacted, would serve as cover for the transfer of power to a less representative, less responsive body that conducts its business in secret and that can more easily be dominated by the AOC. Given the many failures of governance identified by the State Auditor and the Strategic Evaluation Committee, that is a terrible idea.
Directors, Alliance of California Judges