California’s Fair Political Practices Commission will consider this Thursday whether to sue Department of Corrections and Rehabilitation Secretary Matthew Cate, court-appointed prison health care receiver J. Clark Kelso and others to force them to adopt a conflict-of-interest code for receivership workers.
Kelso runs the prison health care system at the behest of Senior U.S. District Judge Thelton Henderson, who found years ago that California had failed to clean up decades-old neglect and abuse that amounted to unconstitutionally cruel and unusual punishment. As a judicially appointed overseer, the receiver has resisted state regulation and oversight lest his efforts get bogged down in the very bureaucracy it was intended to bypass; he files detailed reports on his work to Henderson periodically, even as he’s gotten into a series of dustups with state officials over the limits of his authority.
But the FPPC is responsible for making sure all agencies in California have conflict-of-interest codes defining which of their employees must file the “Form 700” statement of economic interests, and how much must be disclosed on that form. State law requires this so decision-makers aren’t affected by personal interests when they make public policy.
Irrestistable force, meet immovable object. Lawsuit time!
The FPPC is scheduled to take up the matter in closed session after its regularly scheduled meeting Thursday; FPPC executive director Roman Porter told me today there’s no other publicly available information on this. The FPPC doesn’t usually sue until behind-the-scenes negotiation has proved fruitless; Porter won’t say, and I’m awaiting a callback from Luis Patino, Kelso’s spokesman.
UPDATE @ 4:29 p.m.: Kelso’s office says most receivership staffers already file Form 700, but this dispute was over a Construction Oversight Advisory Board and a Rehabilitation Services Advisory Council – the former of which met twice, the latter never – which since have been disbanded, rendering any potential litigation moot. Read Kelso’s verbatim statement, and the FPPC’s reaction, after the jump…
“California Prison Health Care Services administers a strict anti-conflict-of-interest policy and in an abundance of caution, insists that every employee classified at, or above, Staff Services Manager I files an FPPC disclosure of financial interests. Our employees have all complied. The FPPC board’s concern is not pursuant to the Receivership’s compliance but rather a technical legal question. Almost two years ago, when the Receivership planned to build 7 new facilities, two boards were being considered to advise the Receivership about construction issues. The Construction Oversight Advisory Board (COAB) met twice. The Rehabilitation Services Advisory Council never met. Both were sanctioned by the Federal Judge and considered by the Judge and the Receivership to be agents of the Federal Courts. The state FPPC disagreed and a legal question arose as to the FPPC’s jurisdiction over these federal board members. However, since the legal question arose, the Receiver’s construction plans have been altered drastically in light of the current fiscal crisis. Additionally, the CDCR will lead the construction efforts instead of the Receivership. Therefore, we have advised the would-be members that the boards have both been disbanded. I believe that the FPPC board will consider this a moot issue and that all plans for litigation will be dropped.”
But the FPPC’s Porter says it’s not a moot point if either of the boards ever had any decision-making power whatsoever, whether or not they’ve since been disbanded. “When an individual who has to file a statement of economic interest first steps into their position, they have 30 days to disclose the economic interests that they held during the previous 12 months and then annually they file a statement looking back for each one year period,” he said.
For my own part, I note that Kelso’s statement says the receiver’s office has “a strict anti-conflict-of-interest policy” which includes having most workers file Form 700, but that’s not necessarily the same as having an FPPC-approved conflict-of-interest code. It sounds like hair-splitting, but the difference is that without a code as described by state law, the FPPC might have little legal recourse if ever it does find something that looks like a conflict of interests in a receivership worker’s filing.