Marden claims county supervisors acted improperly in hiring CAO and hampered grand jury's investigations; officials defend budget decisions
Bob Marden, who served on
the past two San Benito County Grand Juries, including as the foreman on the
2014-15 Grand Jury, claims the Board of Supervisors allegedly acted improperly
and may even have conducted a “vendetta” against the grand jury to hamper how
future juries conduct investigations of county departments.
Marden contends that
supervisors changed the rules on how grand juries conduct investigations after
the 2013-14 Grand Jury turned in a report critical of how they hired Ray
Espinosa as county administrative officer (CAO). Furthermore, Marden said
the board hampered the 2014-15 Grand Jury’s investigations by refusing to
consider his estimates on raising its budget. And he questions why the
last four years of grand jury reports are no longer on the county
grand jury website.
In Benitolink’s Nov.
25 story, Grand Jury Foreman Questions County’s Support of
Investigations, Marden said the grand jury's original budget was
$19,000, and then $5,821 was deducted for administrative charges. He said
he went to Espinosa to request additional funds in order to complete the
investigations and that Espinosa assured him the board would work with the jury
on resolving the matter. After a number of meetings with Espinosa and
Superior Court Judge Harry Tobias, an additional $5,500 was eventually secured,
but Marden advised Espinosa that the amount was still insufficient. Marden
countered with a proposed budget of $27,500 that did not materialize, which he
said was the reason that the jury did not complete three investigations,
including one that involved a potentially criminal matter.
Supervisor Margie Barrios
said of Marden’s plea for more money, “Every agency is expected to live within
their means. They have to make it work to whatever extent they can.”
She noted that a budget is
meant to last for an entire fiscal year: “To come back and request additional
funding puts the board of supervisors in a very difficult situation because we
have to be fair. We couldn’t do that for every department. If we started doing
that, then what’s the sense of having a budget?”
“That’s their answer to a
lot of things,” Marden said. “We don’t have the money to do it. It’s not in the
budget. It’s their way of putting off the grand jury.”
In an interview with
BenitoLink, Espinosa said, “One of my duties as CAO is to adhere to the
budget. We’re doing the best that we can with the limited staff and limited
resources. There are times when things happen and we take it to the board. The
reality is we have to do our best to adhere to the budget.”
He admitted that the grand
jury is unique because the supervisors don’t have oversight of what it does.
“The court systems starts
them on their way and they’re left to do investigations,” Espinosa said. “The
reality is that the budget is controlled by the county and that’s by state
mandate. We cannot just open the checkbook for a department. That’s the way it
is and we’ve got to work with what we have.”
Espinosa said the grand
jury is the only department—though he said it isn’t really a department—to
receive an increase.
Marden said that after the
2014-15 report was completed, he sat down with a member of the county’s IT
department, which was headed at that time by Espinosa, to input reports and
responses dating back to 2012-13, which he said are now missing from the county
website.
Nathanael Lierly, database
administrator for the county, responded: “It looks like what happened is that
we had a failure of some backups so our county website reverted back to a
previous state. In July 2015, the responses were posted, but once the website
failed we ended up in a situation where it hasn’t been restored yet.”
He said the IT department
is in the process of manually restoring the missing content.
“It wasn’t in any way a
deliberate issue, it was just an issue with backup and restoration of the
website,” Lierly said. “I’m grateful for finding out we hadn’t restored that
and we can now correct the issue."
Lierly acknowledged that
because no one with the county seemed to be aware that the records were
missing, it could have also been an issue that the general public was also
unable to find them, which is required under the Public Records Act. He said he
recently received an email stating that the answers should have been
submitted to the presiding judge to have on file at superior court.
“We also have them on
file in the CAO’s office,” he added, “and we’ll be able to give people access
to those. Now that we know this is an issue we can correct it. It was simply a
failure in a system on our side.”
Hiring Qualifications
Downgraded for CAO Position
In the 2013-14 report, the
grand jury questioned the process used by the board of supervisors to hire
Espinosa.
“We pointed out that in the
report that there were things submitted by the CAO (in consideration for the
job) that were erroneous,” Marden said. “Also, the board of supervisors
possibly functioned outside the Brown Act (1953 legislative act that guarantees
the public's right to attend and participate in meetings of local legislative
bodies) and they went ahead and made a job offer to Espinosa, approving it in a
closed session without going out to the general public and other potential
prospects for that position.”
He said the board changed
the ordinance so applicants do not need a degree to apply for the CAO position
so Espinosa, who was serving as the interim CAO, would qualify for the
full-time position. Marden said the board had every right to change the
qualifications, but maintained that after doing so it was required to again
announce it to the public for possible candidates.
“They had hired a search
agency to find a CAO,” he said. “There were some recommendations from this
agency, which also said, in so many words, that Ray was not qualified for the
job. So, when they came down and actually offered it to a couple of other
people who turned it down, the job was offered to Ray. It was never resubmitted
out to the public for other people who may have had the same qualifications now
that they had adjusted it.”
Supervisors Change the
Rules
Marden continued to plead
his case to the supervisors (through Espinosa), as well as to Judge Tobias and
Judge Steven Sanders. He said state law mandated that the grand jury could not
create money-owed obligations without money actually being on the books.
In January, Marden sent a
letter to Espinosa that the grand jury was about to run out of money. On Feb. 10,
he notified the court by letter that if there was no adjustment to the budget
the grand jury would cease to exist.
Then, he said, everything
suddenly changed.
“They (supervisors)
responded by writing an ordinance that eliminated any compensation for the
grand jury for doing any interviews, any committee work,” Marden said.
“Basically, they took away the actual work of the grand jury unless it was a
‘meeting-of-the-whole.’ We had the meeting in January. The ordinance came
up within 10 days, and suddenly they were able to develop this ordinance to be
voted on to take away the pay.”
Marden said that,
technically, a grand jury is made up of 19 people.
“But at this time we had 14
people,” he said. “So they came up with this ordinance, which was based on a
1993 interpretation given by Dan Lungren (California Attorney General, 1991 to
1999), after a district attorney in Yuba County requested clarification on what
was the actual interpretation of a grand jury meeting. Lungren’s interpretation
was that a meeting of a grand jury would be a meeting-of-the-whole, in other
words, all 19 members. Therefore, a committee meeting (of fewer people) would
not be considered a meeting of the grand jury.”
Marden said there are 58
counties with 58 grand juries in California.
“Not one grand jury adopted
what Lungren said. Not even Yuba County, until San Benito County adopted it
this year,” he said. “To my knowledge, San Benito County is still the only
one.”
In essence, what the
ordinance does, according to Marden, is prevent the grand jury from breaking up
into smaller committees that conduct investigations into the workings of
various county departments by going to the offices of officials to hold interviews.
If the jury cannot conduct meetings, it cannot be paid the stipend grand
jury members get for serving.
“The grand jury functions
by committees to do the different investigations within the areas that they
have,” he said. “We had a justice committee, an education committee, a county
committee, a city and special districts committee, and so on. Then they came
back to the grand jury as a whole.
“At least 12 members have
to agree to take action," Marden said. "That structure of committee
work is pretty consistent throughout the grand jury system—except for this
county. If you say you have to have a meeting-in-the-whole, all 19 members have
to meet to do an interview. It would be invasive and can’t be done. You can’t
go to somebody’s office and put 19 people in there to talk to them.”
'When you control the
budget, you control the grand jury'
By changing its mode of
operation, Marden argues that the supervisors now control the grand jury,
effectively curtailing its ability to conduct investigations.
“Their answer to that
(taking power away) was ‘they were just trying to control the budget,’” he
said. “I said when you control the budget, you control the grand jury. And if
you don’t know how it’s even set up, you have people writing the budget who
don’t know how the grand jury functions.
Barrios said of the
decision to change the makeup of committee meetings that the supervisors were
using Lungren’s definition only as a “guideline.”
“Can we go above and beyond
that guideline? Absolutely,” she said. “But it’s a matter of finances. We could
pay people by the hour or we could pay for every meeting they go to, but we
know what our budgets are, so we use it as a guideline for San Benito County.”
Marden argued that the
supervisors didn’t even know how many people were on the grand jury.
“They didn’t know what we
do and the process we go through,” he said. “They didn’t know what a quorum is.
They had none of that knowledge. I asked each one of the supervisors what they
knew about the grand jury. They said, ‘that’s not our job.’ They said, ‘Our job
is to control the budget.’
“Under state law we’re part
of the superior court, but the funding for each grand juries is by each
individual county,” Marden continued. “So, I guess they have a right to do
whatever they’re doing, but it takes away the one watchdog you have in the
county that looks over their shoulders at how they’re functioning. One of
the primary organizations you're (grand jury) looking at is the board of
supervisors and the departments that they run. Instead of looking upon us as
being of value that they can learn from and maybe upgrade their systems, it has
become more an adversary role.”
In defense of the
board's decision, Barrios said the supervisors do understand that the
grand jury needs to spend time interviewing department heads to conduct their
investigations.
“But they have to live by
the budget that we approved the year before,” she said. “They did come to us
earlier this year and requested additional money. In terms of a percentage, as
small as their budget is, they have to make it work. We couldn’t do
that. They probably get a lot of phone calls and there are a lot of things
they have to look into, but it really is a matter of prioritizing. There are
things they have to look at that are more immediate and the other ones will
just have to be put on the back burner.”
Marden said when the board
added the ordinance to its Feb. 17 agenda for discussion before a final vote,
he was in Florida on vacation, but he was watching the proceedings via the Community
Media Access Partnership on his computer.
“We got word it was going
to come up and I talked to the other jurors and said those who could needed to
go talk against the ordinance,” he said. “At that meeting I couldn’t believe
how obnoxious members of the board of supervisors were to members of the grand
jury.”
Marden said the supervisors
accused the grand jury of frivolously wasting money.
“Without acknowledging that
they had been notified through their CAO of our needs going back to when we
first started, their accusation was that we had no concern and just went ahead
and spent this money,” he said. “I said you ought to be ashamed of yourselves
for what you said. They were talking about the basic function of the grand jury
and what they needed. They still don’t know what the grand jury does.”
Barrios said she sees the
grand jury as a committee of people who are trying to look out for the
community.
“I think the process is
well done,” she said. “They meet with agencies. They interview people. They get
as much information as they can. Then, of course, after they compile all the
necessary data, they fill out a report. I remember grand juries back in the
70s, 80s and 90s, and 2000s, and they would come with ideas and make sure that
those concerns of the citizens are being addressed.”
Barrios said the board
takes the time to see what it can do to address the grand jury’s concerns.
“It benefits everybody,”
she said. “We take the recommendations very seriously. Some of the requests are
not necessarily doable because they may be out of the scope of finances.”
Marden said he
continues to believe that the supervisors’ comments during the meeting were
unjustified.
“I met with two of the
supervisors, one of them being the chairperson (Barrios) and the other was
(Jaime) De La Cruz,” he said. "I asked them who their spokesperson was
that we were supposed to go through. They said it was the CAO. I said, if we’re
talking to the CAO and he’s your representative, what he knows you know, right?
I showed them the dates we met, what was discussed, copies of letters. So
you’re telling me you do know that we had actually came before you people
through your CAO requesting to change the budget. And your comment was it was a
frivolous use of money by the grand jury? I said, you had knowledge of this
back in July, so how can you sit there and say you had no knowledge of what we
were doing? We made the request properly.”
Barrios said, however, that
she commended the grand jury publicly for the work.
“It isn’t an easy job, but
I see it more as a volunteer organization,” she said. “And I hope that someday,
if I’m not a supervisor, I can serve at that level. It’s an important part of
the community.”
Marden countered that
the board’s decision is already affecting the grand jury and volunteers are
apparently hard to come by.
“What
has happened this year is they could not get enough people who were interested
in serving on the grand jury,” he said. “Judge Tobias had to subpoena prospective
members. He told them at their interview everybody has a job, everybody has
personal things at home, none of those are excuses to get off the grand jury.”
December 5, 2015
BenitoLink:
San Benito County News
By
John Chadwell
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