Almanac

Viewpoint - July 31, 2013

Guest opinions: Sparks fly as county manager, grand jurors disagree on report

After release of a civil grand jury report critical of the county's budgeting process, County Manager John L. Maltbie issued a blistering response. Six former grand jury forepersons disagree with Mr. Maltbie, and set out their case. Below are Mr. Maltbie's charges and a response written by Menlo Park resident Virginia Chang Kiraly for herself and the five other former jury forepersons.

County manager takes exception to jurors' conclusions

By John L. Maltbie

The 21st century allows everyone with an Internet connection or a smart phone to access thousands of public records and voice an opinion. Have a strong feeling about a local issue? Tweet it, Facebook it or Pin it. We'll get it.

Online access builds upon long-established laws and codes governing open meetings and open data. The Brown Act requires that the public's business be done in public. The California Public Records Act and the federal Freedom of Information Act give you the right to access information about your local, state and federal governments.

State law requires that every candidate for elected office and holders of key positions complete and file publicly available disclosure statements with investments, sources of income, property holdings and other information. Openness and transparency are the foundations of democracy.

So you might be surprised to learn that one of the most potentially powerful civil institutions in California is cloaked in a veil of secrecy: the civil grand jury.

The civil grand jury consists of 19 men and women who look into the functions of local government and, ideally, root out inefficiency or corruption. Yet they perform this watchdog function behind solidly closed doors. They are chosen in secret, meet in secret, question witnesses in secret, deliberate in secret. This culture of secrecy undermines the grand jury's credibility and effectiveness.

In its most recent report on the county's use of excess educational revenue augmentation funds (ERAF), the grand jury demonstrates an abysmal lack of understanding of the principles and practices of budgeting and financial management. Either the grand jury was uninformed or misinformed regarding the county's use of this funding source. Of course we'll never know because we'll never learn about their deliberations.

What's the issue? The grand jury criticized the county's budgeting practices, coming to the bizarre conclusion that the county is somehow not fully accounting for all revenue.

Had the grand jury taken the time to read its own 2012 fiscal year audit report it would have discovered 10 separate references to the use of excess ERAF as well as a separate paragraph in the controller's accompanying message. The issue has been thoroughly discussed at meetings of the Board of Supervisors (archived online by video and text) and is a matter of public record which the grand jury was free to peruse had they chosen to do so.

(What is excess ERAF? In a nutshell, the county and local cities get back some of their property tax revenue that is used by the state to meet its obligation to fund local schools when these revenues are in excess of the amount needed by the schools.)

These additional funds are called excess ERAF. As property tax revenue and schools' needs change from year to year, the county budgets about half of what it expects to receive in excess ERAF. The other half is used for reserves or other one-time purposes.

The grand jury can provide a valuable service in the investigation of government operations. To be effective the grand jury must conduct itself and produce reports that are professional, accurate and fair. To gauge these things the public should know something about the grand jury and its business. At a minimum the applications for grand juror should be made public — the public has a right to know who's conducting business on behalf of the public.

Like office holders and key officials, grand jurors should be required to fill out financial disclosure forms and a conflict-of-interest statement. How else is the public going to know if conclusions reached by the grand jury are a result of biases or even the financial interests of certain jurors?

The grand jury does not need a cloak of secrecy to conducts its work. Both the Congress of the United States and the California State Legislature have investigative functions yet they manage to conduct their business in public. Even such weighty matters as the appointment of a Supreme Court justice or the impeachment of the president of the United States are conducted in public. Criminal grand juries issue a transcript — and it deals with the very freedom of individuals, not accounting functions.

San Mateo County is one of only two of California's 58 counties with AAA credit ratings from the nation's two largest ratings firms. Our controller and Office of Budget and Performance have received numerous awards for excellence in financial reporting. We take a conservative approach to budgeting uncertain funding sources, and few sources are more uncertain than excess ERAF. In fact the governor's budget could strip San Mateo County of tens of millions of dollars in excess ERAF in its latest budget.

Good thing we didn't budget all of it.

No secrecy in grand juries, former forepersons say

Six former forepersons of county grand juries took part in the response below. They are Julia Yaffee (2003-04), Gerald Yaffee (2007-08), Virginia Chang Kiraly (2008-09), William Blodgett (2009-10), Raymond W. Basso (2010-11) and Bruce E. MacMillan (2011-12).

By Virginia Chang Kiraly

If San Mateo County Manager John Maltbie fully understood the role of the civil grand jury and why and how it functions, then he would not be so quick to criticize and conclude that there is a "cloak of secrecy surrounding the civil grand jury." Instead, he should welcome aid in ensuring good government, which is precisely why the California Civil Grand Jury system exists.

As former forepersons of the county civil grand jury, it was disheartening to read the county manager's wrong and misinformed statements. They were particularly perplexing considering he has been the county manager for many years and, thus, should be familiar with why the California civil grand jury exists, the critical role it plays to ensure good government, and the processes used to help the grand jury function as a citizens' watchdog group.

Grand juries have existed in California for more than 150 years since the adoption of the original state constitution in 1849-50. Section 23 of Article 1 of the constitution requires that a grand jury "be drawn and summoned at least once a year in each county." Each grand jury is under the supervision of a local California Superior Court judge in all 58 counties. Throughout its one-year term of office, the civil grand jury receives advice and counsel from attorneys within the county counsel's office about matters concerning investigations and drafting of final reports. The county counsel's office and the presiding grand jury judge review every final report to ensure it meets statutory standards prior to release.

The county manager is correct that the 58 civil grand juries can be "one of the most potentially powerful civil institutions in California." However, he is wrong by saying that the civil grand jury is "cloaked in a veil of secrecy." Grand jurors are subject to the rules of the court and are sworn to confidentiality. If confidentiality is breached, they can be held in contempt of court. Just because the county manager does not control or like the rules of the court does not mean the grand jury is a discredited and ineffective body. In fact, the opposite is true. The court rules by which the grand jury abides enable and empower it to do its best work, without the bullying voice, political agenda, heavy hand, or arm-twisting of government officials — elected or employed.

Many people wonder how one is selected to be on the civil grand jury. To be clear, grand jurors are not "chosen in secret," as incorrectly stated by the county manager. In fact, nothing could be further from the truth. Notices to county residents are publicized in newspapers, inviting people to apply. Residents are also recommended by elected officeholders or contact the court on their own for an application. Once applications are completed and turned into the grand jury clerk, the presiding judge of grand jury interviews each prospective juror, helping him/her to understand what the expectations and time commitments are. The final step in the selection process is a summons issued by the court to those who have applied for a random drawing of names in the judge's courtroom.

This final step is similar to jury selection in a civil or criminal trial and is open to anyone who cares to attend. During this random drawing, up to 19 applicants are chosen to serve for a one-year term on the civil grand jury. Those who are not selected may become alternates. The court reporter makes a transcript of the entire proceeding, which includes the names of the grand jurors, and files the record with the Superior Court of San Mateo County. The civil grand jury foreperson is chosen by the presiding grand jury judge at the time the jury is formed. To claim that the civil grand jury is "chosen in secret" is wrong and misleading.

Once the grand jury completes its investigation, it documents the relevant data and facts it has collected and publishes them along with its recommendations. Written responses are then required from the government agencies that were the subject of grand jury recommendations. If the county manager is unhappy with a report or disagrees with its findings, he may simply respond with his version of the facts. That response is filed and publicized on the Internet along with the grand jury report.

So, why do we serve? We serve because we believe in furthering good government. There is no more a "culture of secrecy" as the county manager alleges than exists with respect to any function of local government itself. The grand jury protects the confidentiality of those whom we interview as statutorily mandated to avoid a chilling effect. Our reports are available to all on the Superior Court website: http://www.sanmateocourt.org/court_divisions/grand_jury/.

Public agencies and elected officeholders may not like what they hear or read, especially when there is a hard, honest look at how improvements must be made to ensure good government. However, that does not justify an uneducated and incorrect depiction of civil grand juries as "cloaked in secrecy," especially by a county manager who should know better. Civil grand juries are beholden to the people — not to elected bodies, government employees, or public agencies.

John L. Maltbie is county manager of San Mateo County. He issued this response July 22. * * *

Comments

Posted by Menlo Observer, a resident of Menlo Park: Central Menlo Park
on Jul 31, 2013 at 1:04 pm

Virginia is right and John is wrong. And so is the other John


Posted by Michael G. Stogner, a resident of Atherton: West Atherton
on Jul 31, 2013 at 3:12 pm

Another letter from a GJ Foreperson,
County manager tries to shoot the messenger for exposing budget secrets
By tim johnson

I write in response to San Mateo County Manager John Maltbie's Op-Ed in the July 23 Daily News criticizing the grand jury that examined whether the county's structural budget deficit was real or manufactured.

I was the foreperson of the 2012-2013 San Mateo County Civil Grand Jury. My term has expired, however, so I write this as a private citizen.

In an effort to distract attention from the serious issues raised by the grand jury's structural deficit report, Mr. Maltbie has attacked the grand jury process while failing to address the merits of the report.

Before addressing Mr. Maltbie's comments regarding the grand jury process, let's see what Mr. Maltbie did not say.

The Grand Jury's report made 10 "Findings," including the following:

The County's structural deficit is created solely because the county chooses not to recognize all anticipated revenues in a given fiscal year.

County officials had the facts in hand prior to the June 5, 2012, election to know that there would be an actual surplus for the 2012 fiscal year but did not publicize this fact.

County officials had the facts in hand prior to the Nov. 6, 2012, election to know that there was an actual budget surplus for the 2012 fiscal year and that the budget for the 2013 fiscal year was balanced, but did not publicize these facts.

County officials did not adequately inform the public of the county's true financial condition prior to the June 5 or Nov. 6, 2012, elections.

It is important to note that Mr. Maltbie did not dispute any of the grand jury's findings, including these.

Instead, Mr. Maltbie criticized the grand jury's "secrecy," the juror selection process, and the lack of financial disclosure by jurors.

Grand juries originated in England in the 12th century. Their investigations and deliberations have always been conducted in secret. California law requires that civil grand juries conduct their business in secret -- there is no choice in the matter. Mr. Maltbie's call for openness in grand jury proceedings seeks to overturn 900 years of history and law and would seriously undermine the grand jury's ability to serve as the public's watchdog over those in power.

Individuals must apply for grand jury service. From the applications received, the supervising judge chooses 30 applicants from whom 19 are selected by lottery in open court. The names of those chosen are made public. The process is designed to select qualified jurors and to weed out those with an "agenda" other than to serve the public interest.

Based upon the advice of the grand jury's attorney, a chief deputy county counsel, grand jurors do not fill out financial disclosure forms. That said, scrupulous attention is paid to actual or apparent conflicts of interest. Where such a conflict exists, the affected grand juror(s) do not participate in any way in the relevant investigation, deliberations or report. Jurors recused themselves from two reports this year. No juror had a conflict with regard to the structural deficit report.

There's an old saying in the practice of law that goes like this: "If the facts are against you, pound on the law. If the law is against you, pound on the facts. If the facts and the law are against you, pound on the table." I leave it to the reader to decide what Mr. Maltbie is pounding on.

Timothy A. Johnson Jr. was the foreman of the 2012-2013 San Mateo County Civil Grand Jury.


Posted by Lurker, a resident of another community
on Jul 31, 2013 at 3:16 pm

[Post removed. It doesn't seem that this story is directly related to this topic about the grand jury's role and the grand jury's charge that the county is misleading the public about its structural budget deficit. Also, please don't copy and paste text from another publication. That is a violation of copyright. You can post a link. However, in this case we would remove it because it is not relevant to the topic.]


Posted by Michael G. Stogner, a resident of Atherton: West Atherton
on Jul 31, 2013 at 4:19 pm

Why would San Mateo County Manager John Maltbie be so angry and mean spirited towards 19 citizens who donated their time to study the structural deficit issue, and the misleading of the voters.

Thank you to the citizens.


Posted by Lurker, a resident of another community
on Jul 31, 2013 at 4:57 pm

Um, Almanac editors? You have allowed this SAME story on Maltbie, word for word on another thread since December 7, 2012 : Web Link. I believe you have permitted this on at least one other thread. Why the over censorship now?

Additionally, given that Elliot Spitzer's past with prostitutes is a big topic in the press as he runs for comptroller, I don't see how Maltbie's past doesn't fit into his fight with the grand jury.

Anything that has been printed in the press on a politician is fair game. I don't understand why you have allowed this in the past but not now.

What the Almanac should be doing is a story on how many of the people in San Mateo government have come under scrutiny- like coroner Foucrault, as well as Maltbie.


Posted by Arrogance, a resident of Atherton: other
on Jul 31, 2013 at 8:23 pm

Back to the topic at hand, my big-picture takeaways are:

1. Maltbie used insulting and disrespectful language when referring to the grand jury. If I were a Supervisor, I would vote to fire him for that alone. The grand jury is made up of taxpayers. They pay his salary.

2. Maltbie definitely doesn't want citizen oversight of how he does his job. (So what else is new? Most government employees shun accountability).

Definitely doesn't add up to the qualities I'd like to see in a county manager.


Posted by Menlo Voter, a resident of Menlo Park: other
on Aug 1, 2013 at 7:26 am

Why would the supervisors fire him? He's doing exactly what they wanted him to do. They wanted the books cooked so they could convince voters to pass a tax increase so they could spread that money around to their political patrons and cronies. He did and they are. The supervisors are happy.


Posted by Michael G. Stogner, a resident of Atherton: West Atherton
on Aug 1, 2013 at 8:20 am

"Maltbie used insulting and disrespectful language when referring to the grand jury. If I were a Supervisor, I would vote to fire him for that alone. The grand jury is made up of taxpayers. They pay his salary."

The 19 citizens who donated their time are also residents of San Mateo County. I'm in the process of verifying if Mr. Maltbie is.

Supervisor Warren Slocum just posted on FB a photo of Maltbie, Slocum and Horsley in a golf tournament.


Posted by Henry Fox, a resident of Menlo Park: The Willows
on Aug 1, 2013 at 12:28 pm

This Menlo Future email highlights the cost of budget corruption. We¡¦ve Been Had

Fellow Residents,

In Nov. 2012 we generous voters of San Mateo County voted ourselves a 1/2cent sales tax increase for 10 years.

This week two very newsworthy items sort of made fools of us:

1.On Monday, we learned from the San Mateo Civil Grand Jury that the County does not recognize in its budget all revenues the County anticipates receiving during a fiscal year. It has not, as it claims, had a structural deficit since 2003, and in 2012 had a $26million surplus.

2.On Tuesday we learned that the San Mateo County Board of Supervisors voted to give $11.5 million (most) of the county's Measure A sales tax revenue to Seton Medical Center in Daly City. And that is noteworthy because Seton and its parent organization donated $990,970¡Xor roughly 90%--of the money used to run the Measure A campaign. Almost all of the rest of the funds raised --$100,000--came from state arm of the Service Employees International Union. Web Link

Do you feel abused, as I do, about this?
ƒ¼ Lee B Duboc (menlofuture@gmail.com)

p.s. The Grand Jury report is titled An Inconvenient Truth About The County¡¦s Structural Deficit. You may have read about the consternation it caused our County Manager. I think the report is both welcome and defensible but urge you to read it yourself. Web Link


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