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.