Judges W. Kent Hamlin and Kevin McCormick
2011-10-14 09:42:16 AM
A recent opinion piece by an advisory member of the Judicial Council addressing "myths" about the Administrative Office of the Courts and the Judicial Council exaggerates and misstates many legitimate complaints that have been made about branch leadership ("Viewpoint: The Truth About the Judicial Council," Oct. 10). The stated "truths" about the Judicial Council and the AOC are based in large part on "facts" that the AOC's own records have shown to be inaccurate, incomplete or misleading. We offer this response to highlight some of the "myths" erroneously stated as "facts."
|Judge Kevin McCormick|
Myth: "Development of CCMS cost $313.5 million over a 10-year period."
The $313.5 million figure is at odds with what the AOC reported to the Legislature in May. That report showed $454 million was spent on the CCMS project through the end of fiscal year 2009-10, and the AOC projected an additional $92 million would be spent in fiscal year 2010-11. If the AOC's documentation is accurate, CCMS has already cost $546 million.
Another AOC document entitled, "Administrative Office of the Courts/Judicial Council Active Contracts as of September 8, 2011," reflects that Deloitte Consulting had been paid $244,156,392 for its part in developing CCMS, and Science Applications International Corp. — the company providing the Arizona server for CCMS — has been paid $79,386,298. These two vendors alone have been paid more than $313.5 million.
These out-of-pocket costs are in addition to the "soft costs" of CCMS development: staff time spent in debugging CCMS and creating workarounds to make it usable, the cost of sending "subject matter experts" from the trial courts to help Deloitte "create" and "fine-tune" its product, and expenses for meetings, site visits and materials for members of the various CCMS committees.
The $313.5 million figure is far less than the $407 million the state auditor determined had been spent on CCMS as of June 2010. So unless no additional money has been spent on CCMS in the past 15 months — and the courts have received a refund of $93.5 million — this "fact" misses the mark by an amount sufficient to restore full funding to the trial courts this fiscal year. Now that's a fact worth noting.
Myth: "The billion-dollar figures thrown out, ranging from $1.3 billion to $3 billion, are theoretical ..."
The true cost estimate of $1.9 billion to $3 billion for full deployment of the CCMS system came from the state auditor, Elaine Howle, in her exhaustive 138-page report to the Joint Legislative Audit Committee. That was at a time when the AOC itself was advancing $1.3 billion as the total estimated cost of the project. Full deployment of CCMS was projected to cost a total of $256 million when the concept was originally "sold" to the Judicial Council and the AOC. Deloitte, the "seller" of this project, has now been paid nearly the entire "estimated" cost of the fully deployed system, but CCMS runs only a small portion of case management in seven counties. It is now unclear how the courts will ever afford to implement the system in all 58 counties, and a business case for doing so has never been fully articulated. Given that 32 superior courts told the state auditor that their existing systems will serve them for the foreseeable future, the claim that "aging case management systems held together with chicken wire" are the only alternative to CCMS is more "myth" t han "fact." Myth: Since there is an "executive committee headed by First District Court of Appeal Justice Terence Bruiniers" overseeing the project, all is now well with CCMS.
Justice Bruiniers has been one of the most outspoken proponents of the CCMS project for years. In his testimony before the Joint Legislative Audit Committee in April 2010, he argued that an audit of CCMS was unnecessary. It was only through the state auditor's report that the gross mismanagement and lack of oversight of CCMS was uncovered.
Following that report, Justice Bruiniers proclaimed that, "The judges who actually use CCMS uniformly and enthusiastically support CCMS." He also initially suggested that independent verification and validation of the system, as recommended by the auditor, was unnecessary. The auditor's report, and testimony before the Joint Legislative Audit Committee and the Assembly Budget Subcommittee, suggest otherwise. The failures are too extensive to chronicle here, but they have not been resolved by the creation of the myriad committees overseeing CCMS.
Myth: A call for an immediate reduction in the size of the AOC is premature because there are committees carefully scrutinizing the AOC's operations.
While we agree that a thoughtful analysis of the size, growth and necessity of the AOC is essential, the Strategic Evaluation Committee is not scheduled to make any recommendations until the summer of 2012. We are restricting or denying access to courts right now, as we furlough and lay off necessary court staff. We need to fully mitigate cuts to the trial courts immediately, and drastically reducing the budget of the AOC is the obvious place to start. Notwithstanding the claim that cutting the AOC's budget in half "would not provide a substantial amount of funds" for the trial courts, redirecting just one-fourth of the AOC's budget of $326 million would fully restore funding to the trial courts for fiscal year 2011-12. No doubt courts that are laying off staff and reducing services to the public would consider those funds "substantial."
Myth: The number of employees is overstated by those who contend the AOC has nearly 1,100 employees.
AOC records reveal 878 "employees" and 112 "temporary employees" hired through Apple One. Some of the "employees" that the AOC notes were "laid off" have been hired back as "temporary" employees at a substantially higher hourly rate.
Further, in 2011 the AOC executed 55 new "independent contracts" for technology projects — primarily CCMS — and retained many other "independent contractors" for construction, architecture, environmental consulting, real estate consulting, engineering, project management, inspection and other services. These "contractors" work alongside the AOC's 141 employees in the courthouse construction and management division which, according to the AOC website, provides "management services for California's court facilities, and performs design, construction, and renovation of California courthouses." With much of the courts' construction funding having been swept by the Legislature, and many court construction projects on hold for an indefinite period, do we need a committee to tell us that the AOC is overstaffed?
The AOC pays far more than 1,100 people. Unfortunately, the way the AOC maintains records obfuscates the actual number of workers. One must inquire how many people are paid "by or through the AOC," rather than simply asking how many "employees" they had on different dates, or the "truth" provided by the AOC paints an incomplete — and misleading — picture.
Myth: The Judicial Council does not "rubber stamp" recommendations of the AOC.
AOC recommendations to the Judicial Council are routinely approved without serious discussion and nearly every vote of the Judicial Council is unanimous. There have been a few spirited dissenting votes over the past year or two, but the council still largely defers to the recommendations of its administrative arm.
Even when facing the difficult decision of how to allocate $350 million in cuts to the judiciary's budget, the Judicial Council acted on recommendations from the AOC. There were no independent fiscal advisers, auditors or financial experts consulted. The AOC — the very bureaucracy that had a vested interest in protecting itself from the budget ax — was given the responsibility of suggesting how the cuts could best be absorbed by the judiciary.
Myth: Critics wrongly claim the AOC has $82 million in emergency funds.
We are not aware of any individual or group making this claim. What we have pointed out is that cuts of $82 million to the AOC and CCMS would restore full funding to the trial courts without any adverse impact to the public.
Myth: The Judicial Council is now more open to the public and decisions of the Judicial Council are no longer made in secret.
The opportunity to be heard is only meaningful if the Judicial Council is willing to consider the information being conveyed. On July 22, judges asked the Judicial Council to consider specific alternatives to the recommendations of the AOC. The AOC recommendations were adopted without any serious consideration of these alternatives. The request in August to reconsider that decision was also politely ignored.
As trial court judges we are encouraged by the pledge that judges may bring their concerns to their presiding judges — we have consistently supported a judicial governance model that leaves the important decisions to elected representatives of the trial courts. We only ask that our concrete proposals for change receive real consideration by the Judicial Council, and that our actual concerns not be dismissed by mischaracterizing those concerns as "myths" that are "floating around."
W. Kent Hamlin is a judge of the Fresno County Superior Court and Kevin McCormick is a judge of the Sacramento County Superior Court. They are both directors of the Alliance of California Judges.