Office of the District Attorney
Orange County, California

2002 Grand Jury Response

District Attorney
Tony Rackauckas

 

INTRODUCTION

In accordance with the requirements of law, the Office of the District Attorney herewith submits its responses to the findings and recommendations of the Grand Jury. The Office of the District Attorney welcomes this opportunity to discuss its success in protecting and enhancing the public safety and improving the quality of life in Orange County. We have made significant progress in dramatically improving the areas of law enforcement that District Attorney Tony Rackauckas pledged to improve. By re-orienting our priorities and re-directing our resources, gang violence has dramatically dropped, environmental protection efforts have been increased three-fold, and Child Support collections have risen. Much remains to be accomplished and further improvements in several areas can and will be made. The dedicated professionals of this Office will continue to work hard to advance and protect the cause of justice and the public safety.

Executive managers of this Office participated in the preparation of the responses to the Grand Jury Report. They reviewed pertinent case files and records and spoke with members of this Office and other agencies.

At the outset some observations are appropriate. The Grand Jury received a somewhat one-sided view of recent history, apparently a view promulgated by opponents of the changes this Administration brought. It does not appear coincidental that the complaints that prompted the inquiry were made just months before the March 2002 District Attorney election. The timing is made interesting given that many of the complaints involve events that occurred years ago in 1999 and early 2000.

The Grand Jury also lacked the ability to express a credible opinion as to many of the areas that were covered in the report. In many of these areas, the Grand Jury never called the witnesses or reviewed documents or other evidence necessary to make an informed judgment in a particular area. People with information critical to the areas of inquiry or who held differing views were not called as witnesses, and the information they possessed was therefore not made available to the Grand Jury. Instead, in many cases, a single complainant would report a rumor or unsubstantiated charge to the Grand Jury that, without further evidentiary inquiry, would be reported as a “Finding”.

Finally, despite the District Attorney’s request, the Office was not granted the opportunity to view the report and comment upon its accuracy before its release, as was commonly done in the past. Had this opportunity been granted, important information could have been added and inaccuracies corrected. This Office has expended considerable effort to bring such additional information forward and to correct numerous inaccuracies in the Grand Jury’s report. Our goal in this response has been to address the Grand Jury’s findings and recommendations in light of this additional information in a fair and balanced manner.

The Grand Jury’s report mentions some of the major accomplishments under the Rackauckas Administration. While we are very proud of those accomplishments, there have been many other achievements by our prosecution team that deserve to be mentioned. Some of the more significant cases are:

In addition to these successes, the District Attorney’s Office has had several other notable accomplishments. A few of these are listed below:

  1. Members of the Sexual Assault Unit and TracKRS were instrumental in the passage of SB 1242. This groundbreaking legislation allows blood to be taken from prisoners for the DNA database. Substantial efforts by attorneys and investigators, including testimony before the legislature proved critical in the passage of this bill.

  2. The Law and Motion Unit has been aggressive and proactive in making significant changes to California law, benefiting prosecutors, law enforcement, and the people of the State. As a result of cases brought and argued before the California Supreme Court by this unit, significant changes advancing the cause of public safety have been won. In Correa v. Superior Court, the court found that non-English speaking witnesses and victims need not be forced to testify in court at preliminary hearings when their in-field statements were made to police officers through interpreters. In Hambarian v. Superior Court, the court found that using the financial assistance of a public entity victim to prosecute a complex major fraud case did not create a disabling conflict of interest for prosecutors. Similar successes were achieved in the Court of Appeal. In Walters v. Superior Court, the court held that it is unlawful for superior court judges to grant secret discovery orders without hearing from the prosecution, firmly establishing Due Process for the People. In Garden Grove Police Dept. v. Superior Court, the power of criminal defendants to explore the personnel records of police officer witnesses was curtailed.

  3. Through increased efforts on behalf of crime victims, collection of restitution has increased by more than 300%. Orange County is now the top county in the state in collection of restitution.

  4. The Drug Endangered Children (DEC) Program has become a national model for protecting children found in illegal methamphetamine labs. The PROACT (Meth lab task force) team and DEC team have nearly eliminated methamphetamine labs in Orange County.

  5. A Government and Community relations section was created in the Office for the purpose of addressing the needs of Orange County’s rapidly growing immigrant populations. Due to language and cultural barriers, many of these new residents were reluctant to seek help as either victims or witnesses of crime. The program is currently focused on the Hispanic and Vietnamese communities. The many activities of the program include: (a) the launching of a media campaign by creating and producing crime prevention messages for Spanish television; (b) the creation of bilingual resource booklets to assist the non-English speaking community to understand and more easily access the criminal justice system; (c) the creation of domestic violence booklets in four languages – English, Vietnamese, Spanish, and Korean in collaboration with the Spousal Abuse Grant and the Family Protection Unit; (d) providing criminal justice workshops for 300 students in three community colleges; (e) implementing a summer education program for high school students; and (f) organizing community events, town hall meetings, and workshops throughout the County on crime issues.

  6. District Attorney staff in the six Branch Courts (Central-Santa Ana, West- Westminster, North-Fullerton, Harbor-Newport Beach, Harbor-Laguna Niguel, Juvenile-Orange) have developed an unprecedented level of cooperation with the local police departments in training and handling of cases. At these Branch Courts, several deputy district attorneys volunteer their lunch hour on a regular basis and conduct the Orange Outreach program. This program is an outreach to elementary school children focusing on self-esteem, self-confidence, and the criminal justice system.

  7. In recognition of its outstanding work, the Juvenile Unit has received grants to assist with the prosecution of sex offenders, serious offenders and major crimes on school grounds. The first grant was awarded two years ago to initiate an innovative program to deal with the increase of juvenile sex offenders. In the first of its kind statewide, this program devotes resources to prosecuting and treating sex offenders. An important part of the program is its emphasis on providing help for the child victims. Alongside the juvenile sex offender program are three prosecutors specifically assigned to handle serious felony offenses committed by juveniles. Over the years, juvenile offenders have become brazen in their level of criminality and are becoming a major threat to the safety and welfare of our community. These prosecutors are meeting this challenge by focusing on the worst of the juvenile offenders and seeking the appropriate sentence to insure the safety of our citizens. Lastly, our Office is in partnership with the Sheriff's Department in the School Mobile Resource Team (SMRT). A prosecutor is teamed with investigators and responds to threats of violence and major crimes on school grounds. This group is taking a proactive approach to promote a safe school environment for our children.

  8. This Office has made a concerted effort to reduce gang-related crime. Resources and priorities have been adjusted to reflect this commitment. Two new Target teams have been created. The Regional Gang Enforcement Team (RGET) was created to deal with the multijurisdictional problem of roving gangs. RGET has been extremely successful in combating Asian gangs. Also, the Tustin Target team was created to deal with gang problems in that city. The efforts to combat gangs as a high priority have yielded positive results in lowering homicide rates and violent offenses.

  9. The Consumer Fraud Unit, responsible for protecting the public against unfair and deceptive business practices, collected nearly one million dollars in fines during the fiscal year ending June 2002.

Such successes as these could not be accomplished by an office as destitute of morale as the Grand Jury Report suggests. It is our belief that office morale is very good. The only claims to the contrary came from a small but vocal minority with their own political and personal agenda. As to the source of this vocal minority, a few additional observations should, however, be made.

The last time an Orange County District Attorney from outside the Office was elected occurred over 40 years ago. Tony Rackauckas’ initial election in 1998 was a unique watershed event in the history of the Office. For decades each new District Attorney was selected from within the Office by his predecessor. For example, the previous District Attorney, Mike Capizzi, was selected by his predecessor Cecil Hicks and thereafter appointed to that position in 1988. Cecil Hicks was selected by his predecessor, Kenneth Williams. Tony Rackauckas’ opponent in the last two elections was supported by Mr. Capizzi to be his successor.

Many commentators on bureaucracies have noted that when elective office is held for a long period by selected insiders, there is a tendency for an entrenched bureaucracy to develop. With an entrenched bureaucracy there in turn may develop a feeling of entitlement among some of the “selected” insiders. When these feelings of entitlement are disappointed or frustrated, disgruntlement can result. When, as the result of an election, a new leader is selected, and a new course charted, anger and outright opposition from within this entrenched group may ensue.

As noted, the District Attorney election in 1998 marked a break in a decades long chain of insider selected succession. A new course of emphasis on violent crime, gang suppression, environmental protection and increased family support was put in place. The Office was reorganized, for the first time in decades, according to a plan jointly formulated by Tony Rackauckas and the County Executive Office (CEO). This plan was then reviewed and approved by the Board of Supervisors. Managers able and willing to join this new course were selected and put in place. A majority of these managers were the same managers that had served the previous Administration. There was no failure to recognize that there were many career prosecutors who were willing and able to work with the new Administration in pursuing the new course which had been plotted and for which the electorate voted. Many of the reforms, which the Grand Jury Report termed “major accomplishments,” were instituted and advanced by these career prosecutors who were promoted in this Administration. It remains an unfortunate fact, however, that a few refused to support the new course that this Administration chose to steer.

Mr. Rackauckas first ran for the Office of District Attorney on a platform of change. He proposed, and promised to implement, new policies that substantially differed from those of his predecessors. These areas included reemphasizing the vigorous prosecution of violent criminals, the suppression of gangs, the enhancement of enforcement of environmental laws and increased performance of family support. In addition, as a judge, he had witnessed first-hand the destructive effects and often unjust results of the stifling policies and bureaucratic inertia imposed on prosecutors by the previous administrators. He vowed to change these policies freeing prosecutors from stifling rules and streamlining the bureaucracy. Of necessity, these promised changes involved not just changes in policies, but structural and personnel changes as well, including changes in many aspects of the manner in which the District Attorney’s Office was administered and supervised. The electorate, to whom Mr. Rackauckas is responsible, expected a new course. It was his responsibility to ensure that this new course was charted and pursued. He needed a management team that was willing and able to break with the past.

The changes, however, had the unfortunate effect of causing frustration and disgruntlement among some. They shared some common attitudes: a desire for a continuation of the status quo; feelings of infringement upon long held privileges or prerogatives; denial of promotions that were expected or felt deserved; and finally, the loss of long held positions of power to which they felt entitled. A frank reading of much of the Grand Jury’s Report yields the conclusion that many, if not all, of the complaints made to that body originated from this group. It is interesting to note that some of the voices raised against this Administration were individuals that as late as mid-2001 were applying to be promoted into the very management team they have so roundly criticized. It was completely unreasonable for the Grand Jury to find that these few disgruntled former managers from the prior Administration were “willing and able to work competently within a new Administration” and that it “set the wrong tone” not to retain these very disgruntled managers to implement the very reforms that they had so passionately campaigned against.

An example of one of the reforms that was opposed by some of these voices was the Felony Charging Unit, the creation of which was highlighted by the Grand Jury’s Report as one of the major accomplishments of the Rackauckas Administration. This unit transferred authority for the handling of felony cases from many managers who had retained such responsibility in prior Administrations. Although a necessary and appropriate reform, this loss of previously held prerogatives led some to oppose it. When this opposition failed, at least one manager, held over from the previous Administration, lodged numerous false accusations against other prosecutors in the unit. This was supplemented by further attempts to undermine this reform by actively defaming it to police departments that the unit was in part designed to serve. Much energy was diverted to constantly investigating these false accusations. Sadly the fact that these false accusations threatened the careers of hard working career prosecutors did not seem to deter their use.

This Administration has undertaken the most far-reaching reforms in the Office of the District Attorney in decades. This Administration has carried out the will of the citizens of Orange County by bringing necessary reform to the Office of the District Attorney. Many of these reforms were commended by the Grand Jury. It is the intention of the Office of the District Attorney to continue along this path of reform.

RESPONSE TO FINDINGS

FINDING NO. 1:

The DDA V position, in effect, was not eliminated. It was renamed ADA, while the job remained functionally the same as that of the DDA V position. This left an impression throughout the organization that the intention was to selectively eliminate former District Attorney Mike Capizzi administration managers rather than a job category.

RESPONSE TO FINDING NO. 1:

The DDA V position was in fact eliminated. The ADA position was created during the reorganization of the Office of the District Attorney. The initial plan for this reorganization was approved by the County Executive Office (CEO). Reforms undertaken by the District Attorney pursuant to this plan therefore were done within the prevailing county rules and with the consent of the County Executive Office. In addition, at the end of the first year of the Rackauckas Administration, a staffing assessment study of the Office of the District Attorney was implemented with the County Executive Office. The study culminated in a report dated December 15, 1999 and entitled “DA Criminal Staffing Assessment Final Report” (hereinafter referred to as the “Report”). The Report made further reorganization proposals, which again were formulated jointly with the County Executive Office and approved by the Board of Supervisors. The proposals were not actions taken unilaterally by the District Attorney. Curiously, although some of their records were subpoenaed, no one from the County Executive Office was ever called to testify before the Grand Jury in order to clarify this area. Had the Grand Jury heard from other agencies directly involved they would have received a more complete picture of the reforms and reorganizations instituted.

The initial reorganization proposal replaced the 22 Deputy District Attorney V positions with the position of Assistant District Attorney, and was compensated according to an existing County executive manager schedule (designated ML-E). There are such executive managers in every department in the County and the benefits are the same throughout these departments. They are not unique to the Office of the District Attorney. The reduction in the number of managers was accompanied by a corresponding merger of units and increase in managerial responsibilities of the Assistant District Attorneys. The reorganization therefore involved different and often increased responsibilities of the position of Assistant District Attorney. Some examples are illustrative:

The Narcotics Enforcement Team, formerly a separate unit, was merged into a larger unit which included the career criminal and other units. The Target and Gang Unit was combined into a single unit. A single Assistant District Attorney was assigned to manage the Homicide unit where two Deputy District Attorney V’s had formerly done so. In each of these instances the Assistant District Attorneys assumed duties and responsibilities greater than those formerly held by Deputy District Attorney V’s.

Along with this greater control and responsibility came greater discretion. As an example under the former administration a Deputy District Attorney could not move to dismiss a strike unless approval was sought and granted by a Senior Assistant District Attorney. Deputy District Attorney V’s had no authority to grant such discretion. The Assistant District Attorney does.

Since the issuance of the Report, this reorganization has continued. An example is the Felony Charging Unit, the creation of which was recommended by the Report. The Assistant District Attorney in charge of this unit had supervised more than 30 Deputy District Attorneys, a far greater number than that formerly supervised by any of the Deputy District Attorneys V’s. Moreover, this Assistant District Attorney assumed responsibility for the creation of countywide filing policies for felonies to ensure consistent treatment among the various branch courts. The responsibilities of this Assistant District Attorney were soon expanded to include felony preliminary hearing units in each of the branch courts, extending supervisory duties to include the prosecution of felonies from initial filing through preliminary hearing. The creation of pre-trial settlement policies for felonies became an additional requirement, as did the training of Deputy District Attorneys in these policies. The Report stated the duties of this Assistant District Attorney thusly, “This position will perform the following core functions (1) establishing unit standards, (2) training of unit attorneys, (3) coordination with courthouse team leaders to ensure an even workload, (4) oversight and evaluation of attorneys, (5) senior liaison with law enforcement and court staff concerning filing and preliminary hearing issues.” (The Report, at p. 15) Eventually the duties became so great as to require the splitting of the unit into two teams and the appointment of an additional Assistant District Attorney.

One of the purposes in this reorganization was to free the branch court Assistant District Attorneys from the responsibility of handling felonies. This enabled the branch court Assistant District Attorneys to devote additional time and energy to the training of entry level Deputy District Attorneys. This reduction in the breadth of duties of the branch Assistant District Attorneys was therefore accompanied by an increase in the depth of those duties. The Report states it thusly as: “Reducing the Head of Court’s span of control to allow that position to focus on its core responsibility of providing training, development and oversight of junior level attorneys within misdemeanor Operations.” (The Report, at p. 15) The job of the newly created Assistant District Attorney position is therefore not functionally the same as the former Deputy District Attorney V.

The District Attorney disagrees that this left an impression “throughout the organization” that the creation of the Assistant District Attorney position was to intentionally eliminate managers from the former administration. Most of the Deputy District Attorney V managers of the former administration were initially appointed either an Assistant District Attorney or Senior Assistant District Attorney. In fact, of the 22 Deputy District Attorney V’s in the office at the time of the reorganization, all but nine were appointed as either Assistant District Attorney or Senior Assistant District Attorney. Three of the four Senior Assistant District Attorneys originally appointed by Mr. Rackauckas were managers in the previous Administration. In addition, the Chief Assistant, the position second only to the District Attorney, was a former manager in the previous Administration.

Finally, two of the four Senior Attorney Managers in the present Administration were also managers in the previous Administration. Their years of experience range from 17 years on the job to over 30. Collectively, this executive management team has nearly 100 years of experience in the Orange County Office of the District Attorney, 30 years of which is managerial. Among them they have completed nearly 300 felony jury trials, including over 100 homicide trials. Their collective professional experience, by far, exceeds that of the executive management team of the previous Administration. They are fully qualified to discharge the duties of their positions.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 2:

The “at will” status that was associated with the newly created ADA position has had no positive impact on the organization. Conversely, it introduced a pervasive hesitance to engage in open and honest communication.

RESPONSE TO FINDING NO. 2:

Prior to November 1999, the “at will “ status of the Assistant District Attorney position as originally established provided for a right of reduction in grade to Senior Deputy District Attorney. This was the then prevailing rule in the County’s Personnel and Salary Resolution for this classification. The County’s philosophy of executive management favors having these positions at will. This mirrors private industry and is believed to foster increased productivity. The subsequent change in this rule to eliminate the right of reduction in grade was not established by the District Attorney. It was initiated by the County Executive Office and approved by the Board of Supervisors in November 1999. This was a countywide change in the “Personnel and Salary Resolution,” applicable to all Executive Managers in all county departments, not exclusively to the Office of the District Attorney. The District Attorney fully supports “at will” status for executive management. The Executive Management classification has the positive impact of allowing the District Attorney to select and remove managers to best effectuate departmental policies and meet desired goals. Given that a substantial reorganization of the office was in progress, it was important to have managers willing to carry out the necessary reforms and the associated policy changes. There has been no “pervasive hesitance to engage in open and honest communication” among the Assistant District Attorneys. Management meetings are frequent, and opinions are shared in a vigorous and spirited fashion.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 3:

Good policy ordinarily indicates that extensive interviews are necessary for hiring into positions such as ADA. Although cursory applications were processed, no interviews were conducted. The process, which gave the appearance of “appointing” persons to these positions, resulted in a widespread perception of a lack of fairness and intentional retribution on the part of the District Attorney.

RESPONSE TO FINDING NO. 3:

Interviews are not always necessary, and they were not necessary during the initial promotion process to Assistant District Attorney. The applications for Assistant District Attorney were not “cursory.” They involved extensive written responses and required thoughtful composition concerning problems in the office. Given that all of the applicants were long–time employees of the office, whose accomplishments were well known, extensive interviews for the initial promotions were not required. This same practice was often employed by previous administrations on numerous occasions. This was especially so when it involved promotion of long time employees to newly created positions. A good example of this was the previous administration’s promotion process involving the then newly created position of Senior Deputy District Attorney in 1990. Interviews were not employed in the 1990 process either.

This process did not give the appearance of retribution against managers of the previous administration. As noted above, most of the former managers were promoted to the positions of Assistant District Attorney or Senior Assistant District Attorney.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 4:

The existing job description for the ADA position is inadequate; it does not specifically apply to the District Attorney’s Office.

RESPONSE TO FINDING NO. 4:

The Assistant District Attorney designation is a working title that falls within the County of Orange’s Executive Manager Classification (Title Code # 8010E3) in the County’s Administrative Manager Series. The County has a published job description that applies to this series and sets forth their duties as managers. It does not specifically refer to the tasks of an Assistant District Attorney. The County, as well as other successful organizations, utilize broad classifications focused on achieving business goals rather than specific descriptions tailored for individual employees. The District Attorney plans to work with the County Executive Office’s Department of Human Resources to further study whether or not this classification requires further refinement.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 5:

The significantly increased salary and benefits package for the ADA position, as compared to the eliminated DDA V position, makes ADAs more “economically beholden” to upper management than their former DDA V counterparts.

RESPONSE TO FINDING NO. 5:

Increasing salary for the Assistant District Attorney position to the higher end of the Deputy District Attorney V salary range, commensurate with the increased and changed responsibilities of that position was fair and appropriate. If the Grand Jury’s Finding is accepted, then whenever there is an increase in the pay range for anyone, for any reason, that person becomes more “economically beholden.” This reasoning leads to illogical results: In order to avoid increasing “economic dependency,” pay or benefits raises should be forever denied. On the other hand, decreasing pay and benefits reduces “economic dependency.” Increased benefits accorded the Assistant District Attorneys are just and proper compensation for their increased responsibilities.

The salary levels that were set and subsequently adjusted were done so in consultation with the County Executive Office’s Department of Human Resources in order to maintain an appropriate salary differential between that of Assistant District Attorney and Senior Deputy District Attorney.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 6:

The elimination of fallback rights from the At Will Agreements has had a negative effect on department effectiveness and efficiency. It discourages qualified candidates from seeking management positions and has led to the need for adjunct verbal and notational agreements of questionable legality and enforceability that promise “no risk of termination” to handpicked candidates. Furthermore, this “at will to the street” status inhibits open and honest communication, resulting in an environment of mistrust and insecurity, and impedes meaningful on-the-job training.

RESPONSE TO FINDING NO. 6:

The elimination of fallback rights from the At Will Agreements has not had a negative impact on department effectiveness and efficiency.

The Board of Supervisors enacted the provision eliminating fallback rights from “at will” agreements with executive managers throughout the County in November 1999. Although the District Attorney agrees with this provision, he felt it necessary to modify it because of the special sensitivities of his Office at the time. He did so by personally representing to his newly appointed Assistant District Attorneys and Senior Assistant District Attorneys that they would be put back into Senior Deputy District Attorney positions if serving as an Executive Manager did not work out for them. As the department head, the District Attorney has the authority to move staff into and out of Executive Management positions.

The Grand Jury’s Report does not specify how meaningful on-the job training is impeded by this practice. Training programs for management have been instituted by Mr. Rackauckas. These training programs included a series of sessions for all managers and supervisors on goal development, team building, communication, and management skills. The Office’s mission statement was derived from one of these sessions attended by all managers and supervisors. These have not been impacted by the “at will” policy or adjunct agreement.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 7:

Prosecutors are rightfully bound by very stringent ethical laws and guidelines. They occupy positions that mandate a high level of fiduciary responsibility. Open and honest communication up the chain of command, as to handling cases and the appropriateness of District Attorney policies and practices, is a necessary part of a prosecutor’s job. A District Attorney’s office, because of its ethical responsibilities, is not analogous to a private corporation.

RESPONSE TO FINDING NO. 7:

As set forth below, the Office has policies and procedures in place, which relate to this finding. Prosecutors are bound by strict ethical laws and guidelines. Open and honest communication up the chain of command is necessary and important. The District Attorney’s Communications Plan is discussed in the attached memorandum dated January 4, 1999. To further the Plan’s goals, the following meetings are scheduled:

In addition, there are daily informal meetings between and among all levels of attorneys as needed.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 8:

At the time Mr. Rackauckas assumed the position of district attorney, he treated three of the former District Attorney Mike Capizzi ADAs (upper management in the DA’s office) in an intimidating and unjustifiable manner, to the detriment of the office.

RESPONSE TO FINDING NO. 8:

Mr. Rackauckas first ran for the Office of District Attorney on a platform of change. He proposed, and promised to implement, new policies that substantially differed from those of his predecessors. These areas included reemphasizing the vigorous prosecution of violent criminals, the suppression of gangs, the enhancement of enforcement of environmental laws and increased performance of family support. In addition, as a judge, he had witnessed firsthand the destructive effects and often unjust results of the stifling policies and bureaucratic inertia imposed on prosecutors by the previous administrators. He vowed to change these policies freeing prosecutors from stifling rules and streamlining the bureaucracy. Of necessity, these promised changes involved not just changes in policies, but structural and personnel changes as well, including changes in many aspects of the manner in which the District Attorney’s Office was administered and supervised. The electorate, to whom Mr. Rackauckas is responsible, expected a new course. It was his responsibility to ensure that this new course was charted and pursued. He needed a management team that was willing and able to break with the past.

Mr. Capizzi’s upper management teams all held “at will” positions. That is to say, that they had written agreements with Mr. Capizzi that they would hold those management positions at the will of the District Attorney. If the District Attorney wished to exercise the “at will” provision of their contract they could be reduced to a non-management position. The purpose of this pre-existing arrangement is clearly to enable a District Attorney to select the management team he believes is best suited to effectuate his policies. It therefore should have been understood that a newly elected District Attorney would, in all likelihood, seek to select his own management team.

Mr. Rackauckas felt it necessary to change the management team of the District Attorney’s Office in order to effectively institute the reforms that he had promised during the election campaign. It is basic to our democratic system that an elected official be allowed to select managers he trusts to carry out the promises he made to the electorate.

Mr. Rackauckas consulted with the County Executive Office’s Department of Human Resources to gain additional options for them. He explained that he had been authorized by the County to give them two years service credit towards their retirement, which would improve their retirement benefits.

These discussions were conducted in a quiet office atmosphere in the presence of an attorney. They were not conducted in the District Attorney’s Office because Mr. Capizzi would not allow the District Attorney-Elect to use the District Attorney’s Office during the transition. At these meetings the experienced management attorneys, all of whom knew Mr. Rackauckas for many years, were not intimidated.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 9:

The persons hired by Mr. Rackauckas for the Chief Investigator position and the two Acting Deputy Chief positions did not have the supervisory experience commensurate with their positions.

RESPONSE TO FINDING NO. 9:

This Finding is inaccurate.

  1. Chief Blankenship:

    Mr. Blankenship not only met, but exceeded the qualifications set by the Board of Supervisors for his position. Having worked for the Santa Ana Police Department for over twenty-four years, Mr. Blankenship’s resume includes numerous experiences requiring a supervisory role. His experience included working in Patrol, Community Relations, Gang Detail, Intelligence and Organized Crime. He occupied the position of Sergeant/Watch Commander, where he supervised up to 50 patrol officers at a time.

    Mr. Blankenship was also President of the Santa Ana Police Officers Association which had 542 law enforcement officers (sworn and nonsworn) under his leadership. He was so successful he was re-elected for seven successive terms, before accepting his present position. Mr. Blankenship was also President of the Southern California Alliance of Law Enforcement, which represents over 45,000 California law enforcement officers. Mr. Blankenship was voted by Santa Ana Police Officers as Supervisor of the year in 1986.

    The experience Mr. Blankenship possessed made him uniquely qualified for the position of Chief. This position entails not only supervisory duties but also was intended, and proved to be, instrumental in organizing efforts to enact important legislation to benefit Orange County residents and crime victims. Examples of the success of Mr. Blankenship's efforts in this regard include: the passing of a law extending the statute of limitations on certain sex crime cases, and, a pending bill, allowing blood to be forcibly drawn from offenders convicted of certain specified crimes -- both matters of importance to public safety. The Background Check Summary of the County Human Resources Department, an agency independent of the Office of the District Attorney, dated February 10, 1999, commented on Mr. Blankenship’ qualifications in its summary. In a passage, apparently unknown to the Grand Jury, the summary stated:

    He has excellent experience, both in the law enforcement field, and as the leader of a large labor organization.... A review of his personnel records confirmed his varied experience, and revealed an articulate, well thought of police officer and supervisor, who possesses extremely effective people skills. No negative information or comments were found. ... The applicant is highly regarded, both as a law enforcement supervisor, and as an extremely talented administrator of a large labor organization. Through his efforts and good working relationships with the City, and local, and state police labor organizations, the applicant has furthered the goals and objectives of his organization, the members, the Santa Ana Police Department, and law enforcement in general. He has also developed an excellent reputation with local, state, and federal political figures and has been instrumental in furthering legislative needs to enhance both City and law enforcement issues.

    Added to the results of this independent background check is the fact that Police Chief Paul Walters, Mr. Blankenship's former supervisor, highly recommended him for the job of Bureau Chief, again, another fact apparently not known to the Grand Jury. These facts make it apparent that Mr. Blankenship was a clearly superior candidate for Bureau Chief and is eminently qualified to occupy that position.
     

  2. Assistant Chief Carre:

    As with Mr. Blankenship, Michael Carre also exceeded the County’s qualifications which were approved by the Board of Supervisors for the position of Assistant Chief. In conformity with the principle that experienced trial investigators should be promoted, Michael Carre, was appointed to the position of Acting Deputy Chief. The primary responsibilities of an Acting Deputy Chief include the administrative and line functions of the Bureau of Investigations.

    In Mr. Carre's case, he is responsible for these functions in Warrants/Net, Training, Background, Homicide, Special Assignments, Family Support Investigations, and Welfare Fraud. Mr. Carre's twenty-two years in the Office of the District Attorney included experience in almost all of these units. In addition he had supervisory experience gained while a Sergeant with the La Habra Police Department. Prior to that he was promoted from Detective to a Master Police Officer, which also exercises supervisory responsibilities. These included duty as a first line supervisor and field training officer, as well as, the training of new patrol officers and the conducting of performance evaluations. Mr. Carre was also appointed by Governor Wilson three years in a row to the Peace Officer Standards and Training (POST) Commission. During that time Mr. Carre served on the Legislative Review and Advisory Sub-Committees. He also served as the chairman of the Finance Sub-Committee, which is responsible for the review and recommendations of programs for the twelve million-dollar POST budget.

    In response to a question as to who they felt would be the most qualified to fill the Assistant Chief position, an overwhelming majority of supervising investigators expressed preference for Mr. Carre. In addition, a review of Mr. Carre's performance evaluations over a twenty-two year period in the office consistently revealed “Outstanding” and “Superior” ratings. In Mr. Carre’s last evaluation, prior to his appointment, his supervisor wrote: “He is an outstanding law enforcement officer and a role model for others. His experience, positive attitude, motivation, and job skills have earned the respect of his peers, the legal staff and supervisors.” Mr. Carre’s appointment was long overdue.
     

  3. Assistant Chief Michael Clesceri:

    The Grand Jury report states that the minimum job experience qualifications were “changed to accommodate his selection.” The minimum qualifications for Assistant Chief were indeed changed after 1999. This change allowed the flexibility to recruit from outside the Agency. The original requirement required that the candidate possess one year in a responsible supervisory capacity specifically in the Office of the District Attorney. This was changed simply to requiring either that or one year in a supervisory capacity in the Office of the District Attorney or in another law enforcement agency. This minor change was submitted to, and approved by, the Board of Supervisors. Mr. Clesceri met these qualifications.


For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 10:

There were no job recruitments, open application process, or formal interviews for the position of Bureau Chief and the newly created acting deputy chief positions.

RESPONSE TO FINDING NO. 10:

The process for filling these positions was in compliance with County policy and performed with the assistance of the County Executive Office’s Department of Human Resources. Processes used to fill the positions included appointment, promotion, and recruitment.

It is appropriate for an elected official upon taking office to select people he or she knows, trusts, and respects for top management positions. This is done at all levels of government, from the Office of the President of the United States down.

Before taking office, the District Attorney spent a considerable amount of time, effort and thought before making decisions as to whom to place in top management investigative positions. He interviewed a great many of the investigators and all of the supervisors and commanders in the District Attorney’s Bureau of Investigation. He also discussed the relevant issues with many police officials throughout the County.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 11:

The three top positions in the Bureau of Investigations went to persons active in police associations and/or were Rackauckas campaign supporters.

RESPONSE TO FINDING NO. 11:

These positions were not awarded to any person based on his status as a campaign supporter or as a person active in police associations.

  1. Don Blankenship:

    Chief Blankenship was selected because he had the experience, intelligence and integrity required to be the Chief Investigator. (See Response to Finding No. 9.)
     

  2. Michael Carre and Michael Clesceri:

Before the District Attorney took office he interviewed all commanders, all supervising investigators and the Assistant Chief as potential candidates. Both Michael Carre and Michael Clesceri were appointed because they were qualified for their positions and were trusted to carry out the changes in organization and policies directed by the District Attorney as more fully described elsewhere in these replies.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 12:

Mr. Rackauckas encouraged the prior administration’s command staff, commanders and above, to accept an early retirement incentive package. The former command staff did not feel welcome in the new Rackauckas administration.

RESPONSE TO FINDING NO. 12:

The acceptance of an early retirement incentive package was and is completely voluntary. All of the prior Administration’s staff were treated as valued members of the organization.

For the reasons indicated above, the Office of the District Attorney disagrees partially with the finding.

FINDING NO. 13:

There have been numerous incidents of district attorney employees violating the policy prohibiting the use of county time, equipment, and other resources for noncounty purposes.

RESPONSE TO FINDING NO. 13:

As set forth below, there have been instances where the policy has been violated; however, those instances noted by the Grand Jury were minor and very few in number considering the Office has over 1,300 employees.

The policy of the Office of the District Attorney prohibits the use of county time, equipment, and other resources for non-County purposes. This policy is stated in the Office’s policy manual for Attorneys, Investigators and all other Office staff. Moreover, this policy is reviewed with newly hired staff during orientation and throughout the year in training sessions for staff. The Office enforces these policies prohibiting the use of county time, equipment, and other resources for non-county purposes.

The Grand Jury’s report states that there were numerous instances of such non-County use is false.

When violations of this policy are reported, they are investigated and appropriate disciplinary action is taken.

For the reasons indicated above, the Office of the District Attorney disagrees partially with the finding.

FINDING NO. 14:

Notwithstanding the computer screen admonition concerning the use of the computer for county-related purposes only, there is no comprehensive policy concerning the inappropriate uses of department equipment, e.g., fax machines, desk phones, cell phones, copying equipment, and computers (e-mail and Internet); county time; or other county resources, including staff.

RESPONSE TO FINDING NO. 14:

The Orange County Office of the District Attorney has a comprehensive policy concerning the inappropriate uses of department equipment and staff. In May 1994, the Office created a basic office guidelines manual clearly addressing these issues. As technology and equipment developed and expanded, greater accountability became evident. Beyond the computer screen admonition, the Office required its employees to sign an Internet use policy agreement and a broader computer usage policy. These agreements were put in place in 2001-2002. The restrictions placed on our employees became the model for the County.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 15:

There is no policy concerning the appropriate level of discipline for varying degrees of prohibited use of county time, equipment, or other resources.

RESPONSE TO FINDING NO. 15:

A policy statement outlining specific discipline for varying degrees of prohibited use of county time, equipment, or other resources would not comply with the policy of the County of Orange. In determining the appropriate level of discipline, the Office of the District Attorney follows the County of Orange’s policy of progressive discipline. Progressive discipline requires disciplinary issues be handled on a case-by-case basis. The application of progressive discipline requires the Office/County take a number of factors into consideration in making a decision on the appropriate level of discipline. The progressive discipline model is commonly used in the public and private sectors and is imbedded in the various Memorandum of Understanding with the County’s labor organizations.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 16:

There is neither a training program, nor training manual for district attorney employees concerning the inappropriate use of department time, equipment, or resources.

RESPONSE TO FINDING NO. 16:

The Orange County Office of the District Attorney has a training program, training manual and a memorandum concerning the inappropriate use of department time, equipment, and resources. Deputy District Attorneys and investigators receive a two-week training program upon their initial hire. During this time, they receive office guidelines and policies on the appropriate use of department time, equipment and resources. All staff are issued a five-page memorandum covering the same subject. Both the Deputy District Attorneys and investigators have been working to update their respective training manuals. The Grand Jury was given a first draft of the Deputy District Attorney manual which contained several pages of guidelines and policies (restated or expanded from previous memos). Unfortunately, the Grand Jury did not have access to relevant information because they did not interview the primary persons responsible for Deputy District Attorney and investigator training.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 17:

District Attorney’s Office investigative resources were not appropriately utilized in the monitoring/surveillance of Mr. Rackauckas’ son; conducting the inquiry into the legality of the towing of Chief Blankenship’s family car; and conducting the inquiry concerning Mr. Rutledge’s involvement with a car business.

RESPONSE TO FINDING NO. 17:

  1. Mr. Rackauckas' Son:

    Anthony Rackauckas Jr. had his California Driver’s License suspended for driving under the influence. Minimal resources were used in an effort to prevent a recurrence which would could pose a danger to public safety. This consisted of an investigator already en route to Palm Springs stopping briefly for an address check. After that was done, an additional trip to the Riverside County Sheriff Department was made to notify them of the suspended license at the address and again stress that Mr. Rackauckas wanted no special treatment for his son.
     

  2. Chief Blankenship's Family Car:

    Previous to this incident, Mr. Blankenship had experienced a similar situation in his official capacity with the Santa Ana Police Department involving a tow company and a civilian complaint. In that case the city concluded the tow company was engaging in unfair business practices. With that in mind, Mr. Blankenship requested an investigator to merely inquire with the county as to whether the tow company’s conduct in this situation was legal. When he was informed that it was, no further action was taken. The Office of the District Attorney frequently investigates fraud and unfair business practices based on consumer complaints and even personal experiences. Consumer fraud cases have, in the past, frequently been initiated by the experience of an investigator, Deputy District Attorney, and/or clerk in the Office of the District Attorney.
     

  3. Devallis Rutledge:

    After Devallis Rutledge’s resignation from the Office, a complaint was received by a business owner regarding a Deputy District Attorney creating a problem at a local business. It was learned from the police agency that officers had responded to an automotive business regarding a verbal dispute between the business owner and Devallis Rutledge concerning the possession of a car. The owner believed that Mr. Rutledge wanted to take custody of the vehicle and improperly claimed that he worked for the District Attorney. The business owner indicated that there was a videotape of the dispute. After discussions with the responding officer and the failure of the business owner to provide a videotape of the incident, no further action was taken. Improperly representing oneself as a sworn member of law enforcement is a matter that routinely warrants inquiry.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 18:

The District Attorney’s Office missing person investigation concerning an adult male, who was the former boyfriend of Chief Blankenship’s daughter, was in the public interest. However, assistance in such investigation was contrary to the practice of the District Attorney’s Office in regard to adult missing persons.

RESPONSE TO FINDING NO. 18:

The Office disagrees that assistance in the investigation was contrary to the practice of the District Attorney’s Office in regard to adult missing persons.

At the time of the Office of the District Attorney’s involvement there was no existing relationship between any member or relative of a member of the Office. The father of the missing person contacted the Chief and reported that he believed his son had been kidnapped. Believing this to be an emergency situation, the Chief immediately contacted the Sheriff's Department. The Sheriff's Department requested that the Office of the District Attorney continue with the initial portion of the investigation. The subsequent investigative efforts that were undertaken were done so at the request of the Sheriff's Department. After this initial investigation was done, the case was referred back to the Sheriff's Department. This action taken, at the request of the Sheriff, is not contrary to Office policy. The District Attorney’s Bureau of Investigation will often assist other law enforcement agencies including the Sheriff when requested, especially on matters of imminent danger to persons.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 19:

The District Attorney’s Office use of investigators time in the above referred to inquiries or investigations would not have occurred except for the close present or former relationship of persons involved in the underlying circumstances with upper management personnel of the District Attorney’s Office.

RESPONSE TO FINDING NO. 19:

When the Office of the District Attorney received information regarding the aforementioned underlying circumstances, as with any law enforcement agency, it was obligated to respond in a manner consistent with public safety and enforcement of applicable laws. This is what occurred.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 20:

The investigators’ time expended on the inquiries/investigations was not documented because it is the practice of the District Attorney’s Office that investigators do not fill out time sheets or other logs to document time spent on cases, investigations, or inquiries.

RESPONSE TO FINDING NO. 20:

As set forth below, the Office does maintain records of investigators’ time. It is currently the practice of the Office of the District Attorney that investigators do not document their exact time spent on inquiries/investigations. The former policy that required such documentation was abandoned as impractical by the previous Administration. It was replaced at that time by a system that provides for the recording of monthly statistics. With this type of accounting mechanism each investigator is required to log how much of his/her time each month is spent serving subpoenas, locating and interviewing witnesses, writing reports, preparing search warrants, and so on. Additionally, each investigator is required to keep track of the number of cases in his/her caseload. Investigators spend a majority of their time on multiple tasks, often out of the office. Given the nature of their work, experience has proven that this type of accounting system is much more practical and efficient than that formerly employed. For these reasons it was retained by the present Administration.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 21:

There is no single, comprehensive District Attorney Office policy statement concerning allowable expenditures and payment protocols for the District Attorney’s Special Fund.

RESPONSE TO FINDING NO. 21:

The March 1, 1994 District Attorney’s Special Appropriation Fund Policy, and subsequent revisions, specifically detail the practice and policy for allowable Special Appropriation Fund expenditures.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 22:

The current District Attorney’s Office practice and policy for allowable expenses, the language of Government Code, Section 29404, can be interpreted so broadly as to justify almost any expense.

RESPONSE TO FINDING NO. 22:

The March 1, 1994 District Attorney’s Special Appropriation Fund Policy, and subsequent revisions, specify allowable expenditures.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 23:

Current District Attorney’s Office practices do not adequately document the nature of the expenditures to be reimbursed from the District Attorney’s Special Fund.

RESPONSE TO FINDING NO. 23:

The March 1, 1994 District Attorney’s Special Appropriation Fund Policy, and subsequent revisions, specifically detail the documentation required to comply with the policy.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 24:

Chief Blankenship was reimbursed from the District Attorney’s Special Fund for numerous, alcohol-only expenses, incurred at meetings at the Elk’s Club, bars, and restaurants. Many of the meetings, for which Chief Blankenship received reimbursement for meals and/or alcohol expenses from the special fund, did not concern pending criminal or civil investigations or cases.

RESPONSE TO FINDING NO. 24:

As set forth below, Chief Blankenship was reimbursed for expenses from the special fund; however, all of the expenses concerned pending criminal or civil investigations or cases and all expenditures are in compliance with Office Policy.

Chief Blankenship was reimbursed from the District Attorney’s Special Fund for certain expenses, all of which were within the authorization of California Government Code Section 29404, as is required by law and the Office of the District Attorney. Under the Government Code and the Office of the District Attorney Policy regarding allowable expenses, intelligence gathering in high profile and/or political cases, as well as efforts on the part of the Office of the District Attorney to help advance legislation deemed important to the county, are legitimate expenditures. The expenditures of Chief Blankenship fall within this description. Some of the efforts undertaken included garnering and organizing support for the passage of sex crimes bills, including one that extended the statute of limitations on sexual assault cases. This new law has and will enable the office to prosecute sexual predators who would otherwise have escaped justice.

Although the grand jury transcript points out the special fund budget for the 2000/2001 fiscal year was $90,000, it neglects to clarify that only $2,605 was actually spent on these efforts by Chief Blankenship, less than 4% of the budgeted amount.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 25:

The monthly travel claims for out-of-county business trip reimbursements are not cross-checked with District Attorney Special Fund expense vouchers to ensure that a claimant does not receive double payment for meals or other expenses. Chief Blankenship received double payment for certain meals, the exact nature and amount is unknown at this time because of inadequate documentation. The monthly travel claims and the District Attorney’s Special Fund expense vouchers are submitted to district attorney administrators at different times for processing and payment.

RESPONSE TO FINDING NO. 25:

The Office of the District Attorney follows sound accounting practices concerning expense reimbursements. As with almost any accounting system, however, improvements can be made. The Grand Jury report correctly identified that claims for out of county business trip reimbursements were not cross-checked with the District Attorney’s special fund expense vouchers to ensure against double payment. A recent cross-checking of this information has revealed the total amount of overpayments to Chief Blankenship for the entire fiscal year of 2000/2001 to be $209.65. Upon being informed of this, Chief Blankenship paid the entire sum.

These over payments were the result of a procedural error. A detailed review of the cross-checking revealed that the majority of these overpayments were the result of the submittal of payment receipts and credit card receipts to different people at different times. It was not realized that a few of the same expenses were being reimbursed twice. This procedure has now been corrected for all investigators so that such accounting errors will not recur.

For the reasons indicated above, the Office of the District Attorney disagrees partially with the finding.

FINDING NO. 26:

Members of upper management of the Bureau of Investigation have made job assignments to investigators, supervising district attorney investigators, and commanders in a manner that has by-passed one or more layers of supervision.

RESPONSE TO FINDING NO. 26:

Situations arise where an investigation could be compromised or stalled because one or more levels of the chain of command is unavailable. In those situations, it is prudent for members of upper management of the Bureau of Investigation to make job assignments to investigators, supervising district attorney investigators and commanders in a manner that may by-pass one or more layers of supervision. Indeed, it is an indication of a group working as a team when there is a comfort level in bypassing certain levels of supervision to get a job done efficiently. Such decisions have not been made to specifically circumvent the chain of command.

For the reasons indicated above, the Office of the District Attorney agrees with the finding.

FINDING NO. 27:

DDA Kay Rackauckas has been permitted a greater level of authority and influence than is characteristic of her job description, which has resulted in circumventing the chain of command.

RESPONSE TO FINDING NO. 27:

This Finding is inaccurate. Ms. Rackauckas was neither given nor permitted a greater level of authority and influence than is characteristics of her job description. As such, there was no “circumventing of the chain of command.” The District Attorney and his executive management at all times made their own decisions within their respective spheres of responsibility.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 28:

Periodic meetings with the Bureau command staff (commanders and above), and between commanders and their respective unit supervisors have not been held on a consistent basis during the Rackauckas administration. Periodic meetings of this nature benefit the Bureau.

RESPONSE TO FINDING NO. 28:

Periodic meetings with the Bureau command staff, which do occur, are beneficial to the Bureau. It was the intention of Chief Blankenship and the District Attorney to have regularly scheduled meetings as per the February 24, 1999 memorandum from the Chief. When regularly scheduled meetings ceased to be productive they were no longer consistently attended by the entire bureau management team. The Office of the District Attorney holds meetings with the Bureau Command staff whenever meetings are productive and useful.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 29:

There have not been Bureau-generated status reports on significant and/or sensitive cases during a major portion of the Rackauckas administration. Periodic status reports on such cases benefit the District Attorney’s Office.

RESPONSE TO FINDING NO. 29:

As set forth below, Chief Blankenship instituted a process to generate reports on a weekly basis.

Bureau-generated status reports on significant and/or sensitive cases are beneficial to the Office of the District Attorney. For that reason, Chief Blankenship (as noted in the Grand Jury Transcript CJ-36) requested his Assistant Chief to have the Commander's contribute to generating a “Critical Incident Report” on a weekly basis. These types of reports had been abandoned at the end of the prior administration, and it was not until early 2002 that Chief Blankenship learned of the report’s prior existence. Since February 2002, every Wednesday a “Critical Incident Report” is generated and distributed to the Chief, the Commanders and the Assistant Chiefs. It is the intent of the Bureau to continue generating and distributing this report to the appropriate parties.

For the reasons indicated above, the Office of the District Attorney disagrees partially with the finding.

FINDING NO. 30:

The Organized Crime Unit supervisor reports directly to Chief Blankenship. The Organized Crime Unit handles sensitive cases, including anti-terrorist matters that would require rapid decision making. Chief Blankenship is frequently not in the office because he attends numerous meetings and conferences within the county and outside the county. Chief Blankenship and the respective supervisors of the Organized Crime Unit have not had regularly scheduled periodic meetings to discuss Organize Crime Unit matters.

RESPONSE TO FINDING NO. 30:

As set forth below, Chief Blankenship is available to the unit, regardless of his travels outside the county, and the unit meets regularly with Chief Blankenship.

The investigators in the Organized Crime Unit have complete access to Chief Blankenship whether he is in the office or out of the County. The Chief is always available by phone or pager to assist and give input on those matters that require rapid decision-making in sensitive cases. In fact, the supervising investigator of the Organized Crime Unit meets with the Chief at least three times a week and as often as three times a day.

Regularly scheduled meetings with the Organized Crime Unit are not practical because the investigators in this unit do not have regularly scheduled hours, as they are often on late night surveillance in areas all over Southern California. Accordingly, there are frequent meetings between the Chief and the Organized Crime Unit.

For the reasons indicated above, the Office of the District Attorney disagrees partially with the finding.

FINDING NO. 31:

There is no job description for the position of media relations director.

RESPONSE TO FINDING NO. 31:

This is consistent with the typical practice throughout the County of Orange for staff classified as Executive Assistants.

For the reasons indicated above, the Office of the District Attorney agrees with the finding.

FINDING NO. 32:

There are no minimum qualification criteria for the position.

RESPONSE TO FINDING NO. 32:

Office of the District Attorney’s Media Relations Director is classified as an Executive Assistant. The County of Orange Personnel and Salary Resolution, Part 4, Article XXIV, Section 3 addresses Executive Assistants employed by Elected Agency/Department Heads. That section provides as follows:

The determination of the qualifications required and the testing and methods of selection used to appoint employees under this provision are at the discretion of the elected official holding the office to which the employees are appointed.

The District Attorney considered appropriate qualifications for the position in making his decision to appoint the incumbent for this position.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 33:

There are no guidelines regarding the “need to know” limitations of the position of media relations director.

RESPONSE TO FINDING NO. 33:

The Office of the District Attorney deals with sensitive information regarding criminal activities on a daily basis and routinely exercises “need to know” limitations as appropriate for all personnel, including the media relations director.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 34:

The media relations director attended numerous highly sensitive debriefings about criminal investigations/cases.

RESPONSE TO FINDING NO. 34:

At times it is in the best interest of the District Attorney’s Office to have the media relations director attend debriefings on sensitive cases. When needed, the media relations director can assist in the development of an effective strategy to handle media inquiries into these sensitive, typically high profile cases.

For the reasons indicated above, the Office of the District Attorney agrees with the finding.

FINDING NO. 35:

There was no job recruitment or application process, posted or otherwise, for the media relations director position.

RESPONSE TO FINDING NO. 35:

See Response to Finding No. 32.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 36:

The media relations director reports directly to the District Attorney.

RESPONSE TO FINDING NO. 36:

The media relations director does report directly to the District Attorney.

For the reasons indicated above, the Office of the District Attorney agrees with the finding.

FINDING NO. 37:

In the spring recruitment of 1999, the paper screen protocol was changed in order to insure that approximately 5 to 7 candidates, of whom at least two had not qualified under the initial paper screen evaluation, would receive interviews. Two of these persons were given special consideration, in part or in whole, because of a friend or family member who was a political supporter of Mr. Rackauckas.

RESPONSE TO FINDING NO. 37:

The paper screen process was changed after it was discovered to be flawed. All applications were subject to the revised paper screen criteria. Candidates who advanced to an interview included those with experience warranting an interview.

No candidate received special consideration in the interview process.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 38:

Several other family members of friends and/or political supporters of Mr. Rackauckas have been hired by the District Attorney’s Office.

RESPONSE TO FINDING NO. 38:

Each applicant for a position at the Office of the District Attorney goes through the normal recruitment process, which complies with the County of Orange’s selection rules. Candidates are interviewed by two prosecutors (an Assistant District Attorney and a Senior Assistant District Attorney). The two interviewing prosecutors have no knowledge of any personal or political connections of the candidates. The District Attorney is responsible for the final selection based upon individual merit through the recruitment process and at the recommendation of the two interviewers.

All decisions were made strictly based on merit and the recommendations of the interviewers who had no knowledge of any personal or political connections. Mr. Rackauckas regularly encourages qualified people to apply for jobs in the Office.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 39:

Certain spring 1999 recruitment rating worksheets and other hiring materials were lost or misplaced by the District Attorney’s Office.

RESPONSE TO FINDING NO. 39:

The Office of the District Attorney follows the County of Orange Policy of Record Retention for Human Resource Documents. In the case of recruitment rating worksheets, the retention period is two years after the eligible list is abolished. The eligible list for spring 1999 was abolished in December 1999. Thus, all worksheets should have been purged in December 2001. Therefore, it is not unusual that they were not available when the Grand Jury requested these materials.

After a diligent and thorough search by the Office of the District Attorney, some of the recruitment materials from 1999 were located as they were not yet purged.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 40:

It is the policy that in the County of Orange departments and agencies hire employees based solely on merit.

RESPONSE TO FINDING NO. 40:

It is the policy and practice of the Office of the District Attorney that employees are hired based solely on merit. For the reasons indicated above, the Office of the District Attorney agrees with the finding.

FINDING NO. 41:

A highly recommended intern from the Law and Motion Unit was passed over for employment as a deputy district attorney in favor of two law clerks from an informal internship program whose family members were political supporters of Mr. Rackauckas.

RESPONSE TO FINDING NO. 41:

See Response to Finding No. 38.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 42:

There is a negative impact on the ability of the Law and Motion Unit to recruit law students for their formal clerkship program when qualified candidates from the program are not hired when positions are available.

RESPONSE TO FINDING NO. 42:

The Office selects the most highly qualified candidates from a variety of sources, including the law clerk program. The Law and Motion Unit clerkship program of the Office of the District Attorney continues to thrive under the Rackauckas Administration. Each year the number of high caliber law students applying far exceeds the number of clerkship positions available. Law students who participate in formal or informal clerkships are not guaranteed attorney jobs in the Office of the District Attorney. Historically, however, a high percentage of law clerks from the formal program are hired.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 43:

Certain less qualified candidates, who were family members or friends of political supporters or friends of Mr. Rackauckas, were hired as prosecutors over more qualified candidates.

RESPONSE TO FINDING NO. 43:

See Response to Finding No. 38.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 44:

The District Attorney’s Office has a policy that employee performance evaluations should be fair and honest.

RESPONSE TO FINDING NO. 44:

Shortly after taking Office, District Attorney Rackauckas noted that there was a tendency on the part of supervisors to inflate ratings of performance evaluations. This practice provides a disservice to both the Office and the individual employee by not directly and appropriately addressing performance issues. To change this Office custom, the District Attorney issued the “Truth in Evaluation” policy mentioned in the Grand Jury report. The policy was disseminated via memorandum on February 23, 1999 and August 27, 1999.

For the reasons indicated above, the Office of the District Attorney agrees with the finding.

FINDING NO. 45:

The MOU requires annual performance evaluations for DDAs from Level I through Level IV, and interim (six months) evaluations are required for nonmanagement probationary employees.

RESPONSE TO FINDING NO. 45:

The MOU does require annual performance evaluations for Deputy District Attorneys from Level 1 through Level IV, and interim (six months) evaluations are required for non-management probationary employees.

For the reasons indicated above, the Office of the District Attorney agrees with the finding.

FINDING NO. 46:

The performance evaluations and/or protocol followed in the two instances described above, violated District Attorney policy and MOU. In the first instance a DDA with a political or friend connection to the District Attorney was inappropriately rated favorably, and in the other, a DDA politically opposed to the District Attorney and a defendant in the Chief Assistant’s wife’s lawsuit was inappropriately rated negatively.

RESPONSE TO FINDING NO. 46:

There was nothing inappropriate about the ratings of either Deputy District Attorney. It had nothing to do with a relationship between any of these employees and the District Attorney.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 47:

Executive management are not evaluated pursuant to traditional rating categories.

RESPONSE TO FINDING NO. 47:

In August 1999, the County initiated the Management Performance Plan (MPP), a new rating system for all managers, abandoning traditional rating categories in favor of an integrated approach to planning, performance appraisal and pay.

The overall objectives of the MPP plan are identified as follows:

Executive Managers, which in the Office of the District Attorney include: Chief Assistant District Attorney, Bureau Chief, Senior Assistant District Attorney, and Assistant District Attorney, were not required to participate. However, the District Attorney recognized this as a promising tool and exercised the initiative to have all District Attorney Executive Managers use the MPP tool to develop goals and objectives.

For the reasons indicated above, the Office of the District Attorney agrees with the finding.

FINDING NO. 48:

Non-executive management prosecutors and supervising district attorney investigators receive performance evaluations based on specific rating categories.

RESPONSE TO FINDING NO. 48:

Pursuant to the respective Memorandum of Understandings, specific rating categories are utilized in the performance evaluations of non-executive management prosecutors and supervising district attorney investigators and other employees represented by bargaining units.

For the reasons indicated above, the Office of the District Attorney agrees with the finding.

FINDING NO. 49:

According to policy, job related decisions shall be based on merit and prosecutor job assignments/rotations are to be fair.

RESPONSE TO FINDING NO. 49:

It is the policy of the Office of the District Attorney that job related decisions shall be based on merit and prosecutor job assignments/rotations are to be fair.

For the reasons indicated above, the Office of the District Attorney agrees with the finding.

FINDING NO. 50:

An experienced deputy district attorney was not transferred to the Family Protection Unit in early 1999, a position the DDA was qualified for, because the DDA was a named defendant in Chief Assistant Rutledge’s wife’s civil lawsuit.

RESPONSE TO FINDING NO. 50:

Rotation of Deputy District Attorneys takes place twice a year. Prior to rotation deputies submit an assignment preference sheet indicating places in the Office they may wish to rotate to. With the high number of deputies rotating not everyone transfers to their first, second or even their third choice. The primary consideration in rotations is the “needs of the Office.” The Deputy District Attorney in question had valuable past experience in law and motion and was needed in that unit in January of 1999. When the question of moving this deputy came up in March of 1999, Chief Assistant Rutledge was against her transfer, indicating that he felt that she was not qualified, and he had some problems relating to her attitude. When the issue came up again in June of 1999 she was transferred to the Sexual Assault Unit, a premier unit dealing with cases she was highly qualified to prosecute.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 51:

A qualified and recommended deputy for transfer to the Felony Panel did not initially receive such transfer because of information from a defense attorney. The decision not to transfer the DDA to the Felony Panel, based on the defense attorney’s information, was made by Mr. Rackauckas without verification or input from the DDA or the DDA’s immediate supervisor.

RESPONSE TO FINDING NO. 51:

The transfer (rotation to the felony panel) decisions are made based on all the information available regarding individual Deputy District Attorneys. This process is competitive. A deputy must exhibit among other things, the ability to deal effectively with judges, defense attorneys, District Attorney staff and peers. An effective manager will consider information from a variety of sources about a Deputy District Attorney. This information is evaluated to determine if a transfer is appropriate. Judges and defense attorneys often have important information on the effectiveness and professionalism of deputies inside and outside of the courtroom. When a manager, including the District Attorney, receives information regarding inappropriate conduct on the part of a deputy, it may delay a deputy’s transfer to the felony panel (or any unit) and require closer supervision of the deputy’s interpersonal skills.

In this instance the Deputy District Attorney was having performance issues. The Deputy was counseled by a supervisor and, after six months of service with no further problems, was then transferred to the Felony Panel. The decision to defer this Deputy’s transfer to the Felony Panel was made by the District Attorney after a conference with his senior staff. At the time of this decision, the District Attorney had not received any derogatory information about this particular Deputy from a defense attorney.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 52:

Upper management of the District Attorney’s Office had the desktop office computers assigned to Mr. Rutledge and Mr. Wade removed and their hard drives examined, without good cause. Mr. Romney’s office-issued desktop computer was also removed without good cause.

RESPONSE TO FINDING NO. 52:

All District Attorney computers are the property of the County of Orange and are to be used for official business. The Office may legally inspect and/or remove any office equipment, including computers, at any time with or without good cause and without notice.

There was good cause for all of the actions that were taken in these cases.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 53:

The $1,386.84 cost for the Rutledge desktop computer duplicate hard drive and the Rutledge laptop hard drive data retrieval, as well as the investigator’s time spent on examining Mr. Rutledge’s office-issued computers (at least 20 hours) and Mr. Wade’s desktop computer were unjustified and a waste of county resources.

RESPONSE TO FINDING NO. 53:

There was good cause to examine/remove the desktop computers of Mr. Rutledge, Mr. Wade, and Mr. Romney. County agencies have the right to examine any computer that is County property. There were personnel issues regarding the computers in question. In this instance Mr. Rutledge’s laptop computer was examined in conjunction with his lawsuit against the County of Orange. The examination revealed that the laptop computer assigned to Mr. Rutledge was being used by his wife to conduct private business. The resulting information supported the need to develop future policy rules regarding the authorized use of office equipment. Both department policy and County policy affirm the County’s right to audit and inspect use of County computers. Moreover, the policies specifically state that user’s have no expectation of privacy when they use County owned computers.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 54:

There is no District Attorney office policy, protocol, or guidelines which set forth the circumstances, and the level of justification (cause) needed for the administration to cause the forensic examination of the hard drives, and other computer storage medium, of office computers assigned to District Attorney employees. (The computer screen advisory constitutes a warning, not a policy or protocol.)

RESPONSE TO FINDING NO. 54:

All Office of the District Attorney computers are the property of the County of Orange and are to be used for official business. The Office of the District Attorney reserves the right to inspect and/or remove any office equipment, including computers, at any time with or without good cause and without notice based on County policy.

The District Attorney’s initial computer screen advisory warning, when considered with the “County’s Information Technology Use Policy”, is the Orange County District Attorney’s policy regarding computer misuse and allows the County to monitor the system at anytime.

Every computer in the Orange County Office of the District Attorney, upon daily initial start-up, displays a banner indicating:

This banner coupled with the “County’s Information Technology Use Policy” provides a comprehensive “policy” on the use, misuse, and investigation of computer usage in the Orange County Office of the District Attorney.

For the reasons indicated above, the Office of the District Attorney disagrees wholly with the finding.

FINDING NO. 55:

An employee of the District Attorney’s Office obtained confidential letters between the Attorney General’s Office and the District Attorney’s Office, which were improperly disseminated to newspapers with the intent of casting a deputy district attorney, who the office intended to terminate, in a bad public light.

RESPONSE TO FINDING NO. 55:

The letters referred to consisted of complaints and responses between two agencies and were not confidential in nature. Neither office requested confidential treatment of these letters. However, a review by an assigned investigator did not reveal the identity of the person or persons who disseminated the materials described. Furthermore, the review did not reveal the intent of the person or persons who disseminated the materials.

For the above reasons, the Office of the District Attorney disagrees wholly with this finding.

FINDING NO. 56:

The District Attorney’s Office did not follow through on an investigator’s recommendation to conduct an internal investigation to determine who released the confidential documents (AG/DA letters).