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To know or not to know...

that seems to be the question

by Carolyn Kahant for TaxpayersWatch 



     When County Judge Pat Tinley worked out the purchase agreement with representatives of the 11 banks holding the $5 million in bonds, he insisted on immunity for all county employees  -- including the juvenile board and the County Commissioners. Without this legal guarantee of immunity, the "deal" would never have been approved by the county.


      During the time the juvenile board members had oversight responsibilities for the Juvenile Detention Center, they assumed they enjoyed the same immunity from legal liability as they did in the courtroom.   


     Public school teachers are not exempt from lawsuits brought by students or parents. If they are wise, they carry insurance policies for that eventuality, or join unions who supply the insurance for them. All persons who have authority over children are subject to lawsuit ... except for judges. 

     Judges have historically enjoyed special privileges as the final arbiters of the law. Sitting on their "high bench" and "holding court", it is not surprising they are often seen to be literally "above the law". But recently, they received something of a shock to their complacency: A ruling in Texas by U.S. District Judge Terry Means that judicial immunity doesn't necessarily extend to administrative duties.


Playing ostrich


     "It's got judges spooked all over the state," Kerr County Judge Pat Tinley told the San Antonio Express-News in May. "Until the legislature reduces their exposure, they're going to be as jumpy as the dickens."


     216th District Judge Steve Ables said, "We're telling everybody who's dealing with any administrative duty, 'Stay as far away from it as you can. Don't make any decisions.'"


     198th District Judge Karl Prohl suggested to Kerr County Juvenile Detention Facility (KCJDF) Director Becky Harris that she brief County Commissioners, but as for the juvenile board on which he sits, along with Ables and Tinley, "We can visit (with you) on an individual basis as friends."


     The U.S. District Court ruling came last fall when Judge Means denied a motion  based on a claim of judicial immunity that concerned an inmate who died while incarcerated at a juvenile facility in Tarrant County. "What Judge Means is saying is, "If you're going to assume those administrative duties, act responsibly", said Mark Haney, attorney for the dead man's family.


     District judges are required by state law to sit on juvenile boards that oversee juvenile detention facilities. Assistant Attorney General David Harris said, "Most judges were under the impression, I believe, that as long as they were performing tasks assigned to them by the legislature and making their best efforts, they would be protected by judicial immunity. They need to be aware of the fact that they are not always acting in a judicial capacity even if they think they are."


     A House bill passed in April clarifying judicial immunity doesn't address juvenile boards that judges also serve on, because those duties are covered by a different statute. Mark Haney said insulating judges from liability could backfire. "If there is no accountability, then I think it invites irresponsible behavior." He said the Kerr County Juvenile Board discussion (reported below) is "just as irresponsible as acting with deliberate indifference."


 Questions about immunity?


     County Commissioner #1 Buster Baldwin brought the immunity issue to the April 25 Commissioners Court meeting. Sidetracking from the regular court agenda, he said comments made during a recent juvenile board meeting were disturbing and "one is almost alarming to me."


     This excerpt from the minutes of the meeting has been edited to remove repetitious and non-essential comments. You may read the entire transcript online at www.co.kerr.tx.us .    


COMMISSIONER BALDWIN: This is Judge Ables: "But if we know what Becky's (Harris) doing, and it turns out that something goes south, and there's a huge incident, the fact that we knew about it puts us in maybe a role of getting sued." Drop down a few lines, and he continues, "But I just can't believe that we've managed to go as many years as we did and didn't get sued on this stuff." Drop down a few more lines ..."Commissioners may get sued." Judge Prohl says, "And Commissioners are the overseers from above," which is real cute. Judge Ables says, "You know ... I don't know if Bill and Jonathan" -- meaning the two Commissioners (Williams and Letz) -- "know that the more they micromanage the facility, the more they want to find out about what's going on ... the better the case is against them for getting sued. I mean ... has anybody explained that to them?" Judge Tinley says, "I gather you haven't." Judge Ables, "I haven't." Judge Prohl, "I haven't." Judge Tinley, "I haven't." Judge Prohl, "Probably don't intend to." And so it goes on to some other things. Now, what bothers me is that ... the Juvenile Board ran that facility out there, and it ended up -- in my opinion, the lack of oversight and the lack of management, it ended up ruining the county's credit. It's cost us, the taxpayers of this county, a lot of money, probably $3 million. And now they're saying if you manage it, then you're going to get sued. Well ... my problem with all that is, somebody needs to come in this courtroom and tell this Court about this ... I don't know if it's the County Attorney. Obviously, Judge Prohl's not going to do it. He doesn't want to do that. But you, Judge (Tinley), or someone needs to tell us. I think that is very serious language ... if this County's going to get sued and it's going to be another cost to the taxpayers ... we need to know what that's about, because we're trying to manage ... that facility out there. That's all.


JUDGE TINLEY: With regard to the detention facility, certainly, if there are some legalities about being sued or not being sued ... that's a matter for the County Attorney to research and to advise the Court. But having heard a comment about "ruining the County's credit" and "cost us a lot of money," all I can do is say, where were we before and where are we now? Well, before we were looking at ... a balance of $4.9 million in bonds at a true interest cost of ... 5.15%, and now we exchanged that position for one in which we aquired those bonds for $1.9 million, and the true interest cost is under 3%. Those are the facts ... it occurs to me that our position has improved and our debt service cost has gone down. Now ... I recognize that we're going to have to take a hard look at the costs to operate that facility, and I recognize that we had a pretty good run for a goodly number of years because it wasn't costing us a dime, and so nobody cared. But times have changed, circumstances have changed, and that thing is costing some money. I'm hopeful that those costs can slowly continue to be offset by revenues.


 COMMISSIONER LETZ: Judge, can I make a comment? ... I hope you're not saying that it's a good thing that the County and the Juvenile Board defaulted on bonds and stuck people with about $3 million worth of loss that had invested in this county in that facility. I don't think that is a good thing to happen.


JUDGE TINLEY: I'm not saying that the County defaulted, Commissioner, because the County did not default. Notwithstanding the use of the term in two prior meetings ... there was never, never a default in that entire transaction.


 COMMISSIONER LETZ: You could put a gun to the head of the investors and then tell them, 'We're going to give you 30 cents on the dollar, and if you don't accept it, we're going to default.' Same thing.


JUDGE TINLEY: We did exactly what we were legally authorized to do, had every legal right to do, and the documents provided for that. And ... the term "default" shouldn't even come in here, because there was no default.


COMMISSIONER LETZ: I think ... if you had talked to the banks that absorbed that loss, they would have a little bit different view than you're presenting right now to the public. My other comment is, the County Attorney is here, and Commissioner Baldwin says he's going to put it on the agenda related to what they (juvenile board) said. To me, the issue is, is this Commissioners Court in a better legal position not knowing what our departments are doing and let them just run and put our heads in the sand, or trying to know what they're doing? I don't think it relates only to the Juvenile Board; it relates to the Sheriff's Department; it relates to Maintenance, and every other department. Is knowledge better, or is lack of knowledge better? I can't imagine that it's lack of knowledge. But that's, to me, the crux of the issue that I think we need guidance on.


JUDGE TINLEY: That's for the County Attorney.


END OF TRANSCRIPT ... At this point they went on to other items.


To know ... or not to know?


     Is knowledge or lack of knowledge better, when a lawsuit may result? Ridiculous as it sounds, Commissioner Letz is to be commended for asking this question, because the judges who sit on the juvenile board appear to have decided that it is best not to know, the better to protect their precious selves.


     TAXPAYERSWATCH finds this an irresponsible position. Juvenile board members, who incidentally earn $1200 a year for their board service, seem to be a bit defensive about the fact that the JDC went bankrupt under their watch. Judge Prohl reacts competitively to the Court's intention to do a better job, with his sarcastic comment that, "they are the overseers from above." 


We see many of the board's unfortunate decisions as encouraged by their belief in immunity from the consequences that would result.The following incidents are examples of when this may have been the case.


 --Several therapists and MHMR personnel were not allowed to speak on the record when they came to a board meeting. Though they probably expressed their concerns in writing, the board was able to ignore and keep it out of the public domain.


--When problems with construction of the new wing of the JDF came up, they showed a lack of concern because they believed all liability was on the architect's back.


--When the substance abuse program was terminated, with the loss of thousands of dollars of grant money, and the substance abuse therapists and related personnel were also terminated, the board accepted it without investigation.


--When Tanna Brown accused professionals working at the facility with forging her signature on Alcohol and Drug Abuse documents, firing them, and the charges were unsubstantiated by a TJPC investigation, the board did not reprimand or question Brown's motives.


--When money shortfalls and emergencies were becoming commonplace, the board didn't appear to take a hard look at the situation, but were content to believe in windfalls, such as a charter school.


--When others in the community succeeded in bringing Advocacy Inc. "to the rescue", the board adopted a "bunker-style" mentality and refused to allow access. They had no qualms about running up large legal bills to do so.


--Under pressure to appear in control, the board had the Kerr County Sheriff investigate the facility. Not surprisingly, as usually happens when a

governmental body investigates itself, no wrong-doing was found.


--After a damning series of articles in the Kerrville Daily Times, followed by Brown's resignation, the TJPC investigates and finds credible evidence (some from videotapes) for 8 out of 12 abuse allegations.


Follow the money


     In light of all this, TAXPAYERSWATCH sees a desire by the Board, the Director and perhaps others, to create a large, profitable detention operation in Kerr County. Whether it was fueled by ego, competition with other counties and their officials, financial gain -- all of these or none of these -- we cannot say. But that it was not fueled by common sense, or a genuine concern for serving the needs of the people of Kerr County comes across to us from a reading of the transcripts. 


     One clue may be that Tanna Brown enjoyed an $80,000 salary in her last year as JDF Director, plus benefits. Her administrative assistant also received above-average compensation. Following her resignation in 2004, she was hired by Judge Karl Prohl's 198th District office, where she continues to be employed in the Brady division. Because she is paid by another county, TaxpayersWatch was unable to learn her current salary. However, Judge Prohl very generously pays one of his four office clerks in the Kerr County office $44,137, an amount significantly higher than the $27,239 earned by Judge Ables' highest paid office clerk.


     Kerr County pays the salaries of all four employees (full and part-time) in the 216th Judicial District office, for a total of $38,949. The salaries for the four employees in the 198th Judicial District office comes to $55,847. The District Judges also enjoy the services of a District Clerk, whose $44,816 salary is paid by Kerr County, along with $196,477 for seven deputies. There is also a District Court Coordinator who earns $56,575, $12,500 of which is paid by Kerr County. These Judicial District offices serve the needs of the entire, multi-county district.


     The number of employees and their salaries is determined by the District Judges. The county has the authority to deny requests that it deems excessive and many counties do so. Most provide a district clerk who also acts as court coordinator, and one secretary per judge. Kerr County commissioners appear to give our District Judges whatever they ask for, and then some.


TaxpayersWatch believes it is up to the commissioners to trim the budget and bring some accountability to the district offices.

Article from the San Antonio Express News
Kerrville judge criticized for unusual witnesses.  to read article...

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