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.”