Lawmakers Want To Protect AOC Employees, But Face Obstacles

Those of you who’ve been reading the AOC Watcher blog know full well that sometimes the choicest bits of reading come not from what I post, but from what other readers post in the comments section.  And if you’ve been reading the comments section for the various posts you’ll know that one of the key issues for current AOC employees is whether they’re protected by whistleblower laws.  There seems to be a lot of confusion as to whether AOC employees are covered by the California Whistleblower Protection Act.  Although some employees think otherwise, the AOC stands firm in its belief that its employees are NOT protected by the California Whistleblower Protection Act.

And how strong is that belief? Strong enough to have signs like the ones below posted in one AOC office.

According to this sign, “The California Whistleblower Protection Act does not apply to the judicial branch and its employees.  If you wish to report improper judicial branch activity-actions that violate the law, are economically wasteful, or involve gross misconduct, incompetence or inefficiency-please refer to the “Judicial Branch Resource Abuse Hotline” poster located elsewhere on this bulletin board.”

The Recorder’s Cheryl Miller writes in this morning’s edition of the legal paper that legislators at last month’s committee hearing on the AOC are concerned enough about protecting AOC employees who come forward to report abuse in the agency that they’re considering enacting new legislation that would give AOC employees whistleblower protection.

An aide to Assemblywoman Audra Strickland said the Moorpark Republican wants to ensure that the 900-plus employees of the AOC can raise red flags about possible wrongdoing in the agency without fear of retaliation. “We definitely want to do our due diligence,” said Samuel Chung, Strickland’s capitol director. Bipartisan legislation, he said, “is a good possibility.”

The article goes on to detail that as concerned as lawmakers are about protecting AOC employees, they might find it difficult to include AOC employees under the protection of any legal umbrella they build.

Lawmakers could run into trouble crafting any new whistle-blower statutes since many AOC employees are lawyers. Governors in the past have vetoed similar efforts to give whistle-blower protections to state lawyers, arguing that they would threaten attorney-client confidentiality. The state Supreme Court also declined in 2002 to adopt an amended professional conduct rule that would have allowed lawyers in limited circumstances to report “governmental misconduct” to law enforcement.

“We definitely know that’s part of the equation,” Chung said, “and that’s been brought to [Strickland’s] attention.”

So, here’s the question. How far are lawmakers on both sides of the legislative aisle willing to go to create new legislation to protect AOC employees who wish to come forward with damaging information about the AOC? Especially since past governors haven’t been too receptive to the idea of protecting lawyers who work for the AOC. Would they have the number of votes to override any governor’s veto? And what say the AOC? Will they stand silently by and let legislators create vehicles of oversight over the AOC or will they fight any proposed legislation tooth and nail? I think we all know what the answer to that last question is.

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13 responses to “Lawmakers Want To Protect AOC Employees, But Face Obstacles

  1. Welcome back AOC Watcher!
    The democratic legislature will be pro-whistle blower protection, but alas, I think they will not have the votes to override a governor’s veto. Of course, the AOC will fight it tooth and nail but how much influnce now after all of the scandal does the Chief and the AOC have?
    Hopefully and just maybe the republicans will be so turned off by all of the rouge spending and lack of accountabilty by the AOC they willl consider supporting such protections.
    One can only hope. Good grief.
    But on the bright side, for the AOC to do such postings and doing memos about the lack of wistleblower pretections tells me that they are running more scared than ever. They should be very afraid, for it is not only AOC employees that know a lot and can expose much, it is court employees and judicial officers as well. They can’t muzzle all of us.

  2. PS while comments are cool, we need your blogs to inspire them.

  3. Can anyone explain how being an AOC employee AND a lawyer threatens attorney-client confidentiality?

  4. Welcome back, AOC Watcher! You had me worried there for a bit.

    Curious minds want to know what happened to Mr. Douglas Denton. There once was a note on his office door that he was out of the office for a few days but was coming back. He hasn’t been seen since and the note has disappeared. His office door has been kept closed. Did he voluntarily leave or was he forced to an early retirement as well? Hope all is well with him.

    As for the purported sign posted on a bulletin board, it looks like someone made it up. I have not seen such a sign, at least not in our lunch room. The AOC explains that “Although the California Whistleblower Protection Act (Government Code §§8547-8548.5) does not apply to the California judicial branch, the California Labor Code whistleblower protection statute (California Labor Code §§1102.5-1106) protects employees of the AOC, California Supreme Court, and California Courts of Appeal who report actual or suspected violations or non-compliance.”

    Furthermore, the AOC states that “If you have information regarding possible violation of a state or federal statute, rule or regulation, call the California State Attorney General’s Whistleblower Hotline at 1-800-952-5225, which will refer your call to the appropriate government authority for review and possible investigation. Reports may be referred to the AOC’s Finance Division, Internal Audit Services Unit, as the appropriate government authority for review and possible investigation. In addition to the Labor Code whistleblower protection statute, reports of misuse of judicial branch resources and other improper governmental activities may be made pursuant to California Judicial Branch Personnel Policy 6.7 and reported to the Judicial Branch Resource Abuse Hotline at 1-866-865-6400.”

    While I appreciate the comments on this blog, I am concerned that some people, obviously unhappy with the AOC, are not being entirely truthful.

    I am not taking the AOC’s side. Lord knows I am one of those very unhappy employees. But let’s stick with the facts and the truths, not half-truths and made up stuff. It doesn’t serve anyone’s best interest. As a matter of fact, it does the exact opposite. It lessens the integrity of this blog and the people that contribute to it. It makes the AOC look like an angel and the AOC Watcher as the forum for disgruntled employees and judges.

    • Obi-Wan Kenobi

      Fly,

      The memo you reference was just released and just posted FRIDAY. Previous to Friday, the image was what existed on certain AOC bulletin boards. It was nice of you to come play spin doctor but lets be honest with people.

      Neither you, nor anyone else ever saw the new posting you graciously quoted until it was sent out last Friday at 4:30 AOC wide.

      Not only are you a spin doctor, you’re also not very good at it.

  5. Obi-Wan Kenobi

    More than 80% of AOC employees are not lawyers.

    Not extending them full whistleblower protections is a red herring.

    If you wish to exempt someone, exempt the office of general counsel lawyers as they represent the AOC and its only OGC that should have any attorney-client confidentiality.

  6. Obi:

    You’re absolutely correct in the fact that the memo only came out last Friday. However, the small post whose snapshot was taken by someone was posted where at the AOC? I find it curious that it’s only posted on a “certain” bulletin board?

    Besides, the AOC would not dream of posting memos unless it’s on a letterhead. Even the font type and size aren’t right. They’re very anal that way.

    I’m no spin doctor. Like I said, I’m a very unhappy employee. Whoever took the picture of that “memo” that conveniently states “please refer to the Judicial Branch Judicial Hotline” posted “elsewhere” on this bulletin board. Come on! Someone typed that up and then posted it. The last line is almost comical, don’t you think? Not only is the AOC telling you you’re not protected, apparently, according to the image, you have to look elsewhere on the bulletin to board to find out why you’re not protected.

    I’m not a spin doctor. I’m not playing. I really take offense to that. But you can’t possibly believe everything you see or hear. Or if this is a real AOC memo, where was it posted? I suppose I could ask around.

  7. flyonthewall, Labor Code 1102.5 only addresses cases where a) a report is made to a government agency regarding a violation of a statute; or b) a report of non-compliance with a federal/state regulation to a government agency; or c) it’s a health and safety issue and the report is made to a government agency. It won’t protect employees who release AOC info to the media, or who post such information … HERE. Let’s hope those legislators the Recorder’s Ms. Miller refers to get to work on real protection for AOC employees soon.

    And yes, curious minds do want to know: what’s happened to Mr. Denton?

  8. I believe there are more AOC employees who are not attorneys than those who are attorneys. Most laws and policies, of which I am aware, have exemption clauses. Attorneys and their need to comply with attorney-client privilege could easily be covered such exemptions.

    So the the state legislators, I say “We need whistle blower protection at the AOC!” There is much more to reveal about waste, abuse, and most certainly fruad.

  9. Unless you have suffered the wrath of the Bill and his posse, you can not speak from experience. I, personally, know that it does not matter to those who make ultimate decisions here at the AOC what is or what is not in writing, policy or otherwise.

    If you dare complain about anything, most likely you will suffer someone’s wrath. Read the fine print on the AOC complaint policy. For instance, did Fly on the Wall know that it is written the AOC complaints policy that if you do complain, you are not guaranteed continued employment? No policy of which I am aware, inserts such wording. That wording warns you outright. It also discourages reporting anything, whether it be fraud or otherwise.

    Unless you have experienced the wrath of Bill and his posse, you have no idea of what they are capable in the face of all those policies.

  10. Please take a moment to read the attached excellent editorial by Judge David Lampe of the Kern Superior Court, a director in the Alliance of California Judges. I especially commend your attention to the proposed legislation relating to judicial oversight of the AOC, a Trial Court Bill Rights, and Whistleblower Protection for AOC employees.

    Thanks for your time.
    Chuck Horan
    —————————–
    A plan to restore confidence in courts
    The Bakersfield Californian | Tuesday, Nov 24 2009 09:41 PM
    Last Updated Tuesday, Nov 24 2009 09:41 PM

    Our state budget failure has resulted in a legislative mandate for court closures on the third Wednesday of every month. For the first time in our state’s history, citizens have been shut out of their courtrooms. This did not happen even in the Great Depression. Our courts must be reopened, and they must be kept open. We are entitled to courts managed by judges who live in our communities.
    Over the last 10 years, the court budgeting process has evolved from an open, public process conducted locally, to one that is obscure, closed, and conducted by a remote bureaucracy. It is time to restore public confidence in our courts by reestablishing public awareness and scrutiny.

    In 1998, the Legislature changed court funding from the counties to the state. In doing so, the Legislature acknowledged the need for strong and independent local county court management. The Legislature asked that the Judicial Council, the 27-member group that adopts statewide rules for the courts, minimize regulations over county courts. The Legislature also asked that the Judicial Council adopt a Trial Court Bill of Rights. The Judicial Council never adopted the Trial Court Bill of Rights. Our local courts were given little or no input into the budget decisions that closed them. The Judicial Council now has relegated much of its function to staff through the Administrative Office of the Courts (AOC).

    Also in 1998, the Legislature required that budget decisions for the courts be reviewed by a trial court budget commission. In 2002, as part of a very complex bill, the trial court budget commission disappeared. Now trial court budgeting is determined directly by central management in San Francisco.

    The AOC has seen incredible growth since 1998. In that time, judges have worried that the AOC sees its role as one of control rather than of assistance. The AOC has preserved an expensive computer project, estimated to cost $1.7 billion, which many believe has not been effectively planned. Legislators have complained that the AOC does not submit line item budgets. Others complain that the AOC maintains undisclosed or obscure millions in reserved trust funds.

    There are about 1,700 judges in the state. The AOC maintains a staff of almost 1,000 employees in San Francisco, and approximately 290 of those employees make more than $100,000 per year. The AOC has continued the hiring of employees while county courts have been ordered to shut their doors from the public to save money. The AOC preserves many functions that are not directly related to adjudication, such as in public relations, lobbying activities, and expensive conferences.

    These concerns have now erupted into media demands for audit of the AOC, and demands from the other branches of government for disclosure.

    This past Sept. 11, in response to the unprecedented financial crisis now facing our judicial branch, a new organization of judges in the state was formed called the Alliance of California Judges.

    In the upcoming Legislative session, our Alliance suggests that the Legislature act to restore public confidence in our court budgeting process by acting in three areas.

    First, the Legislature should reaffirm the rights of the local trial courts by putting into law the Trial Court Bill of Rights which the Judicial Council failed to adopt.

    Second, the Legislature should establish a separate trial court advisory group, consisting of active trial judges elected by judges from the 58 county trial courts, which would advise the Judicial Council, oversee the AOC, and report upon the judicial budget and judicial affairs to the public, the governor, and the Judicial Council itself. This group would also serve the original purposes of the trial court budget commission. These judges would volunteer, and would have staff assistance provided by funds already allocated to the AOC.

    Finally, the Alliance believes that the Legislature should act to place the employees of the AOC under the existing protections of the “whistle blower” statutes, to ensure that employees feel free to bring their concerns about operations of the AOC to public light.

    Courts are not computers or buildings. Courts are sessions of people — where children in foster care have their fates decided, where crime victims and injured persons, and those accused of crime or causing injury have their day in court. Access requires open doors.

    David Lampe is a Kern County Superior Court judge and one of the founding directors of the Alliance of California Judges.

  11. Judge Horan: Have you see NYT editorial (Nov. 24, 2009) [http://www.nytimes.com/2009/11/25/opinion/25weds1.html?_r=1], which specifically mentions California’s court closures as well as the challenges facing other state court systems? Here are the last 2 lines of the editorial:

    “but, at some point, slashing state court financing jeopardizes something beyond basic fairness, public safety and even the rule of law. It weakens democracy itself.”

  12. As a matter of fact I read that today on ENEWS. Hard to argue with the premise, isn’t it? It is also a fact that the threat to judicial independence becomes quite real in times like these. Historically, there have been instances elsewhere where the very core function of the judiciary–judicial decision making–has fallen under the sway of budgetary considerations rather than individualized case assessment. Perhaps some of you can envision future scenarios wherein judges in this state might be subjected to those sorts of pressures. I can. Hang in there, folks! On we go.