HomeMy WebLinkAboutCity Council Meeting - Council Workshop - Minutes - 04/17/2001 COUNCIL WORKSHOP MINUTES
APRIL 17, 2001
COMMITTEE MEMBERS PRESENT: President Leona Orr, Sandy Amodt, Tom Brotherton, Tim Clark,
Connie Epperly, Judy Woods, Rico Yingling
STAFF PRESENT: Brent McFall, Dena Laurent, Charlene Anderson, Roger Lubovich, Tom Brubacker,
Norm Angelo, Lori Hogan,Mike Martin, May Miller, Ed Crawford, Bonnie Kosko, Jackie Bicknell
The workshop began at 5:10 PM.
Probation Services Liability Issues
Deputy City Attorney Tom Brubaker—There have been some recent cases in Washington that have
changed the scope and degree of liability that can be attributed to the city for the acts of probation officers
in monitoring defendants. Prior to the past year or two, there have been various levels of immunity
provided, because there's been a sort of quasi-judicial immunity for officers of the courts or delegates of
the court. There's been some immunity provided to the city when the probation officers acted outside the
scope of their job. Even though the officer might have been liable, the City was still immune. It's one of
those situations where"hard cases make bad law". There was a situation where a juvenile offender, who I
think had been released from incarceration and was on probation for armed robbery or something like
that,went to somebody's house, broke in and raped and murdered a 12-year girl.
Assistant Chief Administrative Officer Dena Laurent—We've talked about this when we talked about the
Hertog, and we talked about it as part of the legislative agenda, seeking that immunity from the
legislature.
Tom Brubaker—It's a very grievous set of circumstances, very emotionally compelling and because of
that I think the court sought to find a way to somehow help the grieving families. There are a couple of
other, similar cases. The result is that the county was, in that instance, held liable and they waived those
immunities or changed the degree of immunity provided the cities. The verdict was, I think, $13 million.
It was big. But the scariest thing about the case is - here was a person incarcerated for robbery who went
out, raped and murdered, and the city was held liable even though the crime committed had nothing, or
very little, to do with his previous offenses. A person could be under our probation system for domestic
violence or assault, could go out and get in a barroom brawl, maybe kill somebody or severely injure
somebody. The injured person could sue. The person who did the injury is of course judgement-proof.
They don't have any real assets to begin with. The injured party's attorney looks for someone else who
has deep pockets. The city's right there. Was the offender on probation? Yes. Let's go after the city.
The probationer should have seen this coming.
Or you could do it in a simpler version—I'm just trying to give you all the options. A simpler version
could be an automobile accident,just a fender-bender, and the person who is responsible for the accident
could be an uninsured motorist. The person who's hit in the fender-bender could say to their attorney, is
there anyone else I can go after? Is there any way I can get my car fixed? They could say,well if this
person is on probation let's have the City of Kent be liable for that. Let's see if we can make them liable.
Because again, the relationship between the offense(the crime the person's under probation for) and the
' subsequent crime - that connection has been stretched pretty thin, if not broken.
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16 However, (and the judge can talk about this in greater detail)there are, nevertheless, a lot of benefits to
probation. It does an effective job of monitoring criminals. Not perfect, but a very effective job. It does
make a difference in our local region and our local society. It does tend to solve some of the problems we
see, and although some of the people come back through the revolving door, a lot of them don't. There's
real value to probation. I should also say WCIA has recommended that we consider eliminating
probation, but it has not been a mandate from them. So we've been juggling with the whole probation
issue. What do we do, because we're suddenly running a new risk?
City Attorney Roger Lubovicb—There has been not just the one case, but a couple of cases that have
dealt with this issue. Right now there's a Superior Court case in Pierce County where a DUI ran over and
killed somebody. I believe it's an $18-19 million-dollar judgement that's on appeal. So the chances of
having one of these cases may be slim,but when they come, they could be big. I think that it's important
that the Council be notified of this issue,because immunity is being eroded. The relationship of the
underlying crime for which a person is on probation for, and the crime that results in the big judgement,
can be tenuous. But it's not just one case, there have been a couple of cases that seemed to have totally
eroded immunity or confirmed that the issue of qualified immunity is not really as strong as we thought it
was.
Tom Brubaker—So the question is what do we do about probation? We've talked about it a lot, all of us,
especially in our department. We had a pretty strong reaction of- Oh my gosh! We need to eliminate
probation, because we can't assume the risk! But, thanks to the good efforts of other level heads in the
City, Judge McSeveney and Bonnie Kosko (who is in charge of probation), we think it's probably worth
continuing our probation department. The probation department also has a new-hire position that's been
• on hold, pending our decision on this whole big issue. We would like to ask you,by the end of this
meeting, if you approve of our going ahead and hiring this extra person. We think that probation has
value. Although we can string out a parade of horrible situations, these changes in the law may be further
limited as the months and years roll by, and there may be qualifications placed on it. We may or may not
get sued. We think in light of the value of probation to the City, and to the jail system and to Kent
society, it would be a little bit of an over-reaction to just eliminate probation at this time.
Councilmember Connie Epperly—We only deal with misdemeanor cases. So you're not looking at the
armed robbers and the rapists and stuff like that.
Chief Administrative Officer Brent McFall—They're not on probation in Kent for that. The problem is
they're on probation in Kent for a minor offense, a misdemeanor and then they go out and commit a
horrible felony. They're still under our supervised probation and what the courts have been saying is that
they can then find liability on the part of the city, because we should have known that this person was
capable of that heinous crime.
Tom Brubaker—And, of course there's no way that we can determine that. Recently the probation
department and the court have been putting together a guideline manual for probationers,which we think
if it's properly executed, can give us some protection. In other words, we establish guidelines that are ',lust
guidelines. They indicate processes and the kinds of work that should be done but they aren't mandates.
They don't say - when you get this kind of defendant you shall do this and every two weeks we're going
to soften it enough so that it does not provide a basis upon which to come back after us and say don't your
•guidelines say you're supposed to do this within two weeks? Yes. Did you do that? No. Why not? If
you hadn't done that,blab, blab,blah... We're going to work on the policies and have WCIA review the
probation policies. Judge McSeveney has pointed out that there are some things that have been
implemented to reduce the liability of the probation officers. They are now under the direct supervision
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• of the presiding judge. No defendants are placed on probation unless they are first convicted of a crime or
placed on deferred prosecution. Pretrial probation, in other words, does not exist. They have no
discretion in the administration of their probation from the court and as soon as a defendant is found to be
in non-compliance, we terminate probation. We're going to implement that and work on the policies and
the guidelines. We are going to have WCIA and our own office review the policies, and we think if we
do all those things we've taken reasonable steps to balance the risk of liability against the benefit that
probation provides us.
Councilmember Tom Brotherton—What about the mitigating liability? Could we require, as a condition
of probation, that they have auto insurance or that they get personal liability insurance?
Tom Brubaker—I'm in charge of prosecution right now, but I'm not real familiar with this. I think you'll
find that that's not an easy thing for these people to do. I'm sure the judge or Bonnie could speak to it in
more detail, but these are often people that are having a rough go of it.
Tom Brotherton—It may be better for the city to subsidize this if they're having trouble with it rather than
run liability.
Tom Brubaker—They can have some very significant fines racked up and this gets to be a downhill spiral.
They don't have a valid operator's license. They get hit with fines. The fines increase. They don't have
insurance. They can't pay insurance, but they go out and drive because, lets put it in its best light, they've
got a job that they want to get to, to try and pay off the fines. They get pulled over for a bad brake light or
something. They're driving without a license, they get fined again. This time it's second degree instead
• of third degree. They get more fines and pretty soon some of these people have thousands of dollars, or
certainly hundreds and hundreds of dollars to pay before they can get their license back. Then, they have
to get insurance and you can imagine how much insurance would cost when you have that kind of a
driving record.
Tom Brotherton—I'm hoping you're talking about the exceptional case, not the average case.
Tom Brubaker—I think that's pretty much the average. So those kinds of conditions would add to
another problem you all discussed at your retreat, which is jail population.
Roger Lubovich—Probation really has the benefit of trying to help these people out,because it is a spiral
they can't get out of Otherwise they'd be in jail along time. Not having probation means that the judge
is going to have to do more sentencing in jail time. That impacts the issue of crowded jails.
Tom Brubaker—I believe you'd be required to sentence more jail time in the absence of a probation
system. So, it gets very complicated. At first what seems to be a simple problem - let's just get rid of
probation and reduce that liability -when you start to look at it more closely, there's a reason for having
it.
Rico Yingling—You said there's a set of guidelines that are being prepared?
.Tom Brubaker—Policies.
Rico Yingling—Do these policies contain any type of performance standards, like you have to meet with
the probationer once every month? If there are those kinds of performance standards, how are we doing
meeting them? How do we ensure that we do meet them? If a case ever goes to court, can we say- here
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• are the performance standards and here are our records showing we met them? Wouldn't that put us in a
better kind of legal position?
Tom Brubaker—It would. Although we have to be very, very careful. My recommendation would be to
create them as guidelines, not standards.
Councilmember Rico Yingling—Is the court saying that if you want to have a probationary program,here
are the standards you have to meet? Are they doing that, and if so, do we keep the records?
Probation Supervisor Bonnie Kosko—The easy answer to that is everyone placed on probation is
assessed. We do a risk assessment, and it is a very standard risk assessment. We place them on a
supervision level according to that risk assessment. If they are high, we're mandated to see them at least
on a monthly basis. If they're lower, there are different options for seeing them.
Rico Yingling—So before they go out on the street, there are standards for management of that person, is
that correct?
Bonnie Kosko —Not necessarily out on the street.
Rico Yingling -- Why did they go on probation? Before you put them on probation, you developed a set
of standards for managing that person.
Bonnie Kosko—It's in place within the existing probation standards that we have now. They're
sentenced out of the court, and certainly there's a time frame from sentencing to the time that we see them
in our office. It's usually less than 30 days, and at that time we do an initial intake. The standard is set
for reporting to probation at that point.
Rico Yingling—Do we always meet the standards that we set for that person?
Bonnie Kosko —I don't think anything is 100%perfect, but I would say that we are really, really close.
The challenge for our department has been the number of cases that we have had to manage over the
course of the time we have been in existence. Many times there are 250 to 285 people.
Rico Yingling-- That's a fear I have. If you set a standard for yourself, and you say this person is on the
"A" level (or whatever level you use) and that means we're going to meet with them once a month and do
this and that with them, what happens when you find out that you have too many people to manage and
you can't really meet the criteria you've set yourself? If that person screws up and commits a crime or
has an accident or kills someone and it goes to court, then the other attorney is going to take your
information and use it against you to say you weren't managing this person like you said you would.
That's my concern about that.
Bonnie Kosko —And it's very valid. That's why we've been asking for another person, to bring our
caseloads down to a more manageable level. We have an excellent computer program in place that we
use that I believe is beyond the standard of the industry. It is an excellent program. We have a good
tracking system. We have good people, and the best liability insurance we can have is an extra probation
officer to bring our caseloads down where we can give you the assurance that we are 100% correct.
Brent McFall—What we are really trying to do is establish a"best practice"by recognizing that our
clientele are not the most dependable folks and they'll violate their probation by not coming in for their
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appointment. We can't go get them and drive them in for their appointment. They have to take personal
responsibility. Well, these are people who have demonstrated an inability(at least at times) to exercise
their responsibility, so it creates a problem for us. What we have to do is try to have these "best
practices", and I think some of the things that the probation department and the courts are doing to
address these issues are responses to that. So now if someone violates the terms of their probation rather
than us working with them like we might have in the past to try and get them to compliance,probation is
revoked. Now that has another impact.
Municipal Court Judge Robert McSeveney—If you look at these cases that have been published by the
appellate courts, a vast majority of them deal with the Department of Corrections. The Department of
Corrections has a specific statutory scheme that the probation officers must follow. They have a
tremendous amount of discretion. It's basically between that probation officer and the offender as to
setting standards and so forth, but I'm sure they have their own internal written policies. There aren't that
many cases that involve this level court, but you folks need to know that a lot of people that we see are
significant felony offenders and have significant histories.
I want to mention a couple of things and put it in perspective here. It's like having a police car in the
street, or like any government service out there, if something bad happens you probably are going to get
sued. You don't get rid of your police department because you're worried about that,but my
encouragement has been, make it the most defensible position, if in fact there is some kind of liability
brought. You're not automatically liable simply because you have a probation department and the courts
have said— look, once the judge puts somebody on probation there is a relationship there, but if there's a
failure to adequately monitor and report violations, then this quasi-judicial immunity that they have could
go away. And that's the key.
So the position that I have taken is to really limit any rules or regulations for probation that are issued by
me. Bonnie doesn't have the discretion to change those at all and there is a reason for that. What is
happening with probation is that there was an effort in the legislature to try to get some increased
immunity, and the legislature was not willing to do that. I serve on the State Board of Judicial
Administration, and the recommendation that we have pushed(and will probably happen) is a proposed
Rule 11. This is a state Supreme Court rule that basically says all probation is directly under the judge.
That helps because that puts it under the judicial branch and the immunities are there that can help, and
it's the judge that will formulate the policies. So in a practical sense, if somebody is in front of me and
they are convicted of a domestic violence offense, I sentence them and I say, don't do these things. They
get alcohol treatment for 30 days and they have supervised probation. They will meet with probation and
probation will do the assessment.
Probation knows that it says in the policies that if this person fails to appear, if they show up with alcohol
on their breath, they are immediately given a hand-written notice to show up in court. Probation is
terminated because the cases have said you want to cut that liability off. And, that's what did it in this
Meesh case because the judge refused to revoke the sentence. The person went out, committed an
offense, and the court says the judge eliminated the causal factor there. So what we've tried to do is put
no one on probation prior to conviction. They have to be found guilty and convicted. And not every
person is put on actual supervised probation. Sometimes a person driving with a suspended license is told
- don't drive without a license and insurance - but that's court monitored and just a little different.
Usually it's a high-end offender of domestic violence or DUI— those folks are ordered to be on
supervised probation. So when that person shows up for probation and they give urine tests, if they have
a positive response, the probation officer will immediately cancel probation,or at least notify us and we'll
Council Workshop,4/17/01 6
• strike it and give them the notice to appear within two weeks before the judge. That eliminates the
problem if there's a bench warrant and somebody doesn't show up—it cuts off that issue.
Just because somebody has a `driving while suspended' conviction and is on probation, and they go out
and kill someone, I think they'd be hard pressed to show any kind of liability there. A plaintiff would
have to show that Bonnie failed to complete or comply with the policies that I set for adequate monitoring
reporting. So these guys sit in the court with a computer and they have all the information right there as
far as the history goes and they can report to the court. But that's not to say something won't happen
down the road. You just have to prepare a defense for that.
The average caseload now is 200 to 230-240. I've been clearing out some cases to try to alleviate that,
but with the increase, an additional position would help with monitoring. Probation does work. The
Department of Justice study I have asks "Does domestic violence treatment help?" The jury is out on that,
but one significant factor was that aggressive court monitoring made a big difference on re-citizen rates.
My policy has been that when somebody commits an offense and they are convicted, they make things
right, restitution, that they be held accountable for their behavior. I think that's the most frustrating thing
that we all experience. Probation is an arm of the court and it helps keep people out of jail and out of
court. There are people I might sentence today that I never see again because they're in compliance with
probation monitoring. So it does work.
Roger Lubovich—I agree with everything the judge said except for maybe one area. I don't think
immunity will follow the probation officer,no matter how you structure it, unless the judge is really
making final determination of monitoring. The concern in our office is in having standards set that are so
strict. Let's say that the judge orders specific standards that the probation officer must follow. For some
reason the probation officer cannot follow them. That sets the probation officer up for liability. I may be
wrong, Tom,but I think on our review, our preference is to have some discretion with the probation
officer so they can have some flexibility. Any time you set up a black and white standard and you do not
comply with it, it's going to be used against you and that's my concern. I just don't think you can push
down judicial immunity for the probation officer, and I think our office has really been concerned about
how it will stand in the setup. I may have taken your statement out of context,Judge, but that's the
biggest concerns we have - instead of black and white rules of this is what the probation officer shall do.
If you don't do it, then you have liabilities.
Judge McSeveney—I think Roger is generally correct there, because there have to be guidelines. My
biggest concern was, the probation officer had between, depending on the nature of the violation in the
Meesh case, five days and up to 60 days to report non-compliance to court and to try to get the person
back into compliance. I don't want probation trying to do that. I want, if there's any non-compliance,
immediate notification to the court of terminated probation and then when they get back before the judge,
we'll decide what to do. Because I think that when you give the discretion to not report it, then there's an
argument— `well there's inadequate supervision here. You could have reported it, could have gone back
before the court.'
Bonnie Kosko—I think part of what Judge McSeveney was saying was, when a sentencing order comes in
from the court to probation, it's very clear exactly what we're supposed to be having that defendant do.
To be in treatment within a certain time frame, to be doing AA and that sort of thing. We are making no
•judgments in regards to what they need to be doing and I think that's part of the point. There used to be,
not necessarily in this court but other courts, a saying, "as directed by probation". We don't have that
discretion and I think that that's an important point to remember. It is all court mandated and then we're
responding back to the court for non-compliance.
Council Workshop,4/17/01 7
iTorn Brubaker- I agree with the judge when he said that just because an incident occurs does not
necessarily mean that we're going to be found liable, but I also want to make it very clear that from our
office's perspective and from WCIA, the world has changed. The risk of liability is significantly different
than it was before. It doesn't mean we will be liable in every instance,but that risk has definitely
changed.
Torn Brotherton—You come up with a process and a set of procedures and you're codifying how you're
going to do it. You're aiming to minimize liability by taking away a lot of the responsibility and freedom
of action of the probation officers so the judge is responsible, but this will be a snapshot in time. You're
going to have to keep current and I think you need a process to review it periodically and make sure that
it's still doing the job you intended it to do. This means you actually need to assign that responsibility to
someone at some period in time, otherwise as people change, as our memories fade,we won't come back
to it periodically.
Judge McSeveney— The guidelines that are there are information from the Misdemeanor Correction
Association and they might be policies and procedures that King County had, or some other agencies.
We've begged and borrowed and kind of put these things together. We've tried to run it through legal and
get their opinion on it. They've sent it out to city associations to try to give us an idea what to change and
what not to change, and that's the best approach to those guidelines. Also when they get put together, I'll
just sign a court order that says simply that this is our policy and that helps. So, I agree to their not being
too detailed.
Tom Brubaker—The judge's decision is still immune. It's judicial immunity. I just gave Rico a little
printout from a newspaper article about a former Washington State Supreme Court judge, Phil Tallmage,
who has just been hired by the State Department of Corrections to review their policies, and he makes a
statement similar to what Rico just made.
Rico Yingling—It says, Since September the Department has lost or settled five cases totaling about 50
million dollars for people raped, maimed, killed. The Tacoma News Tribune did an analysis of the system
and disclosed that parole officers routinely ignore department rules on visiting released felons, enforcing
court ordered conditions of parole, and reporting serious parole violations to courts. Phil Tallmage said
Friday that the department may have been too specific in setting its standards. The point being, you set
up a plan that you have all the best intentions of doing but you've got a 250 person caseload and there is
no automatic system that says, today here's your action plan. You need to get all these things done if
you're going to be in compliance with what you said you would do. And unless you have a system that's
that detailed and that good and people that can accomplish all those action items, there are going to be
items that you just fail to do, or like Brent said they fail to come in. It means a lot of extra work trying to
find some way to reach them and get them in there to do the test.
Judge McSeveney—I'm trying to think what you're thinking. Because the court's already ordered them
to do certain things.
Rico Yingling—And you guys are also creating other things.
*Judge McSeveney— The state system is different. When I say in general things, `no new law violations,
no alcohol or non-prescribed drugs, report to probation and complete this one-year domestic violence
program.' That's it. So when they meet with probation, all probation is doing(and our clerks do) is
Council Workshop,4/17/01 8
monitor new law violations. When they come in they might say, `oh surprise, here's a bottle; we need a
urine sample.'
Rico Yingling— So you wouldn't ever add anything onto that?
Bonnie Kosko—And that was the point I made just a little bit ago.
Rico Yingling—And then what happens if they don't come in? Do you always know that they didn't
report?
Bonnie Kosko—Absolutely.
Rico Yingling—And how do you know that?
Bonnie Kosko—An appointment letter is sent to the client. If it's returned in the mail, we send immediate
revocation notice to the court so that they know the appointment letter came back and they're not likely to
show up for a probation appointment. If we don't get the letter back and they don't show up on the
appointment day, either that day or the next day, a revocation notice goes to the court.
Rico Yingling—So in other words you've got a computer system that says this person is supposed to
report today. What if that isn't input in the system?
Bonnie Kosko—If they don't show up, we know that day, and notification goes out within a day or two to
the court. When the court gets it a review is set, and at the time of the review they're making a docket
entry on the court record indicating that probation is terminated, which shows on the record for our
benefit.
Rico Yingling—The only responsibility that you have is when they show up to take the tests, etc.?
Judge McSeveney—The judge ordered, 1, 2, 3 and we are already on number 1, number 2 and where's
your proof what's going on. She's never going to say well, I think you need to go now and get an alcohol
assessment. What she may do is send me a note that says probation should be amended and we have to
bring a person back into court and then make the amendment. Somebody doesn't show and there's a
warrant issued. What I will do from the bench is terminate probation, issue the warrant, and that way it
cuts off this continual obligation to monitor.
Tom Brubaker—I gave you that article for two reasons: one is for the information, second is that
Tallmage will finish his review, and he may have(in terms of our own policies and guidelines) some good
suggestions about what we can do differently or what should or should not be in there. I think what we're
coming to you for today is to explain the big picture. To tell you we have some ongoing or short-term
goals in reviewing our policies and we think probation should continue to be in place. We want you to
authorize going ahead and hiring this new probation officer. We have some long-term ideas that we're
going to continue to look at as we move forward in time. They include:
♦ Set a cap on the total number of probationers per probation officer.
♦ Pass an ordinance that limits the types of crimes that would be subject to probation.
♦ Reduce or eliminate the current probation system if this (or another) city has a lawsuit arising from
negligent probation.
♦ Reduce or eliminate the system if WCIA reduces or eliminates coverage.
♦ Reduce or eliminate the system if there is a more significant change in the case law.
Council Workshop,4/17/01 9
In other words, we think the appropriate thing to do is to keep moving forward, keeping our radar up and
our eyes and ears open and do our best job to react to the situation as it changes.
Brent McFall—I want to amend just one thing that Tom said, and that is you've actually already
authorized that additional probation officer. That position is in the 2001 budget. We have not proceeded
to hire that position because we wanted to get this matter resolved. We didn't want to hire someone and
six weeks later terminate our probation department and say, oh well thanks for coming, you're laid off.
It's my opinion that, under the authority that the Mayor has to administer the budget, if you're
comfortable with the direction we're taking, it's time for us to go ahead and proceed. We can try to keep
our number of assigned probationers per probation officer down to a lower level. The reason we haven't
proceeded with filling the position that was authorized in the 2001 budget was the concern that the
Council might say to us - we're really uncomfortable with this whole notion of probation, hold up on it.
We wanted to make you aware of the situation. It is potentially very serious. Serious enough that WCIA,
our insurance pool, was saying to us - you've got to consider doing away with probation. That's pretty
serious when our insurer tells us we ought to get out of the business. (They also told us we shouldn't
build a skateboard park, so....) But it was serious enough that we need to take a comprehensive look at it,
which we have done, and are continuing to do and there's still work to do which you've heard about
tonight. But I think we're in a position to go ahead and proceed with adding to the authorized level of
staffing so we can get our caseload per officer down, and proceed with further refinement of these
guidelines.
Leona Orr—Any idea when our insurer will see this and get a response back regarding guidelines or
whatever?
Dena Laurent—A review of that document is in employee services now, ensuring that the changes we
made comply with our citywide policies. As soon as their review is complete there will be another look
through by the law department and then we're sending it to WCIA for review. My hope is that we'll have
that all complete by this summer.
Leona Orr—I would just say to keep us posted. Keep us informed as you move through the process.
Dena Laurent—We will continue to meet, certainly, should there be any rules or case law changes so that
we can amend our practices to respond to those changes,just as we have this far.
Brent McFall—We tried to get a legislative fix. That just didn't happen and isn't going to happen. Now
we take the next best step. The reason that it's so dangerous is that these are people that wouldn't be on
probation in the first place if they didn't have some behavior problems, and if Bonnie sees them once a
month for half an hour,what are they doing all the rest of the time? We don't know. They are under the
supervision of probation, they can do all kinds of things during that period of time and, as the judge said,
they may be in our court or on probation for a relatively minor offense, but there are people who are in
that situation who are felons. They just don't happen to be serving a felony sentence in our court.
Judge McSeveney— I was just looking at some statistics today, and if you want to look at these, they are
online at the courts.wa.gov web site. Behind Seattle Municipal Court, we have more criminal filings than
*almost any other court in King County. In the month of February there were 301 from Kent and 280 from
Bellevue. They have four judges, so it's a big operation with a lot of folks going through that system and
a lot of successful projects. That's what you don't hear of, probation does help a lot of folks. No city or
county anywhere in the state has eliminated probation yet. I think the downside of that would be very
Council Workshop,4/17/01 10
• difficult. Chief Crawford, the jail would be full because you would have a second time DUI, for example,
who would have to serve a year in jail unless they're put on probation. There are a lot of other problems
too.
Rico Yingling— So if a citizen asked us why we have a probation program what would we want to tell
them?
Judge McSeveney - I think if you were going to talk to some citizens about why we have probation, I
would say that probation is an arm of the court. Probation simply monitors on behalf of the court to make
sure that an offender, for example a person who has damaged your car,bent the antenna,broken the
windows, that they pay restitution, that they engage in lawful behavior, that it's not left a year or two
years down the road or to the end of their sentence when we've lost jurisdiction. They're held
accountable for every aspect of their time. Domestic violence offenders report and check in, and it's
simply a matter of monitoring what the court does and holding people accountable for their behavior.
That's the key.
Judy Woods—What are the alternatives within the system for a year, for your second DUI, and how often
are we going to see them after that?
Judge McSeveney— I've three options under the state statutes. I'm a court of limited jurisdiction. I'm
bound by the statutes. I can defer sentencing. I can say— `Ok you complete these conditions for 12
months and at the end of 12 months, the conviction's withdrawn, case dismissed.' Part of deferred
sentence is conditions and probations. So that would be eliminated. For a suspended sentence, I can say
— `Ok you don't have to serve the year in jail, as long as you complete the treatment and do these things.'
That still involves probation. Anything left is the execution of the sentence, which is probably what
would happen because we couldn't monitor deferred sentences or deferred prosecutions. Not everybody
going through that court is a low life, so to speak. A lot of people are,but there are citizens that act
without discretion and get a drunk driving offense. They are on deferred prosecution because they're
alcoholic. If you didn't have probation, the only way to monitor that is to have that person come back at
least a minimum of once a month. They'd have to leave their job at Boeing, have to take a half-day off
simply for compliance. Bonnie can structure the supervision. It might just be us checking with the
agency and they don't have to come in. So that's the advantage of that. It keeps the jail population low.
Judy Woods—The option is that you're gonna have this recycled population and you can't keep up with
that. We already have a problem. We have that now.
Rico Yingling—Did you just say that Bonnie could restructure their probation?
Judge McSeveney - If someone reports to probation and they have, say 10 felony convictions for domestic
violence and all these types of things, that's going to be the highest level. There are three levels of
monitoring. I think the question has to do with Bonnie having discretion as to what level of monitoring,
but the intake should determine.
Bonnie Kosko - Right. We would be seeing them according to their risk assessment. We don't have
discretion in regards to sending them out to do something different or additional. Everything goes back
,discretion
the judge for decisions about that. Not only do we see the client, we are checking with their
treatment agency. Making sure their attendance is correct. We have a UA (urinalysis) system, in our
office. They come in for a random appointment. We conduct a UA to determine if there is something
going on there. We take reports ftom citizens,mothers, girlfriends, and other people who might be
Council Workshop,4/17/01 11
reporting to us. We can take action on that. We have a whole level of things that are discretionary in
regards to the information we get in and report back to the court, but as far as what they are supposed to
be abiding by, it comes right off the sentencing order and nothing gets changed.
Connie Bpperly—When somebody works at Boeing, and instead of taking a half a day off could you have
discretion to check in with their employer?
Judge McSeveney—The intake will say that this person probably should see us once a month and they are
coming in once a month. There might be other people where it's every other month. Or, for some people,
it's simply a phone call.
Rico Yingling—And who makes that decision?
Bonnie Kosko —That's according to the risk assessment. Risk assessment is a series of questions. It
might be -how many times you have moved within the last 12 months, employment information, or other
criminal history—a lot of questions like that, that come together and we're able to then pinpoint how
often we need to see that individual.
Brent McFall—I think that's where it comes back to best practices management -that you put this in
place as a recognized practice (and that may be the place where we end up being most vulnerable), but it's
also a place where we have the defense of saying - and here's how we did it and why.
• Rico Yingling—We have a way to determine this and we actually met our own statements.
Brent McFall—Right. It doesn't mean we won't be held liable but it will help us defend ourselves.
Judge McSeveney—What you say is"These are the standards the judge has approved and ordered
probation to follow and they did." And, it may not be probation, but maybe discretion or decisions. I
think what you're going to see, contrary to what Tom is saying, is the Supreme Court is going to put
probation directly under the judge and the proposed rule says what level of probation. You may not have
that discretion as a city down the road to be able to say we're going to get rid of probation. Last year there
was about$270,000 collected on probation fees, and probation was about $15,000 short of being in the
black. It's one of those programs that can pay for itself. These big awards that Tom's concerned about,
that's a real issue statewide. I know all of us,judge levels, appellate court, Supreme Court, are all
concerned about it. But unless the legislature steps in, the best thing you can do is try to build a
defensible case by way of policies,procedures, and practices.
Tom Brotherton—I'm still uncomfortable about how often we check this and make sure it's still the right
procedure. The way you assess risk is: what's the probability of occurrence and what's the consequence
if it does occur. You're looking at the ways you can mitigate the probability of its occurring. The
consequence, if it does occur despite all your actions, are costly and catastrophic for the City and so this
has to be and remain a very high-risk issue for the City. Leaving it to haphazard, that is - if I see anything
I'll review it, seems foolish to me. It seems like we should have a yearly review, a risk review, on this
process. If it does occur once, it could bankrupt us.
*Judge McSeveney—You mean the standards and those types of things?
Tom Brotherton—Right. I think there ought to be a formal review periodically.
Council Workshop,4/17l01 12
Judge McSeveney—You're doing the best thing you can—you're running it through legal. They run it
through legal.
Tom Brotherton—But we ought to schedule it on this day every year and have a formal review—sit down
with the people and collect the literature and see how it's changed over the year and see if we have to
change the policy—not just wait for someone to notice something in law review.
Rico Yingling—My company is in the middle of a lawsuit and the companies are suing each other and we
are winning even though we have no standard operating procedures. The reason is because the other
company has standard operating procedures that they're not following, so our lawyer is pinpointing every
time they didn't follow a standard operating procedure and the our company can't do the same because
we have none.
Roger Lubovich—Rico, that's the concern I was trying to address. If probation sets the policy,not the
judge, and the judge sentences somebody, he's got some immunity. If probation sets the policies on how
to handle something, and they are so hard and concrete, and you must follow them, that's exactly the
situation. If you have some limited guidelines and there is some discretion that you may do this or you
don't have to do this if it feels appropriate, then it's harder to make it stick. But that can also come back
the other way too. There's no easy answer.
Rico Yingling—The best thing is that this computer system helps you to stay on top of what you say
you're going to do, like you suggested that it does, but my feeling from all that you've said is that it's
more complex than that and that you don't always know.
Bonnie Kosko—It's a fabulous program.
Judge McSeveney—I don't think it is, necessarily. Here's why. If somebody is told this is a standard:
somebody is convicted of assault and they have to do one year's worth of treatment- for the most part
they are ordered to get into treatment for 30 days. They have a court review within 30 days for me to look
at it, where they meet with probation. Plus, the agency there sends status reports directly to probation or
calls them. In other words there's several areas of check. Our clerks will periodically pull out the
criminal history to see if there is any activity,because if they commit an offense in February why wait
until November to get them in. What I want is, if you commit the offense today, you're in court within a
week and we'll deal with it. It's not like somebody goes out(and it has happened)where they have been
formally compliant for 6 or 8 months and the court has never ordered"don't drink or consume alcohol",
there is no indication to probation or the court that the person has an alcohol problem (and there might
even be an assessment they don't have it), yet they go out and kill somebody head-on. They could sue but
I think you'd be hard pressed to show liability.
Rico Yingling—It's definitely an important thing, and I'm not a supporter of"Chicken Little"
government where every time someone squawks out there you stop doing that, or eliminate it from the
program.
Bonnie Kosko—And, working in the trenches, I can tell you that it does work and we're seeing clients
every day who appreciate the fact that the court held them accountable. Their life has dramatically
changed; they are not in the legal system anymore. They've saved their family and we're hearing positive
comments about people like that and I would hate to see us loose that ability to hold people accountable,
especially from the victim's standpoint. If you're the person that's been victimized and you sit in court
and see nothing happen and you know that this guy's walking out there with the freedom to perpetuate
Council Workshop,4/17/01 13
• that behavior over and over again...., I think we've got a good thing going with probation. We handle all
of our cases and I believe we have an excellent staff. It's as if it is going to hit the P.I. in the morning-
we want to make sure that we're handling our paper and we work under that pressure every single day
when we're meeting with our clients, and hopefully making the appropriate decisions. We can't control
their behavior.
Judge McSeveney—Every Thursday we have probation calendars and the probation officer is in court and
if you want to see how they operate, come down. I think they're really efficient. More so than many
other departments around. I'm pretty proud of them.
Leona Orr—I think Tom makes a good point that we need to sort of stay on top of what's happening and
perhaps we can schedule reviews, and, Roger, you can keep us posted on what's happening out there so
that we can make adjustments if need be.
Judge McSeveney—And I think the extra person will help significantly to reduce that, plus it will give
Bonnie a better opportunity to supervise.
Legislative Briefing
Dena Laurent—I want to talk about two things we've been hard at work on last week and will continue to
work on this week. The first, of course, is continuing to talk about transportation. However, our focus
has shifted a bit, not only from the direction I was hearing at the retreat but also just the circumstances in
the legislature. There are four or five different approaches to the transportation issue down in the
legislature now, and our focus is getting them to pass anything—the discussion of whether it will be
something that goes to the ballot or not. There are folks in the business community who would like to see
the state address it and not take it to the ballot. There's that conflict, and there's the conflict over what
kind of project it should be, how much over how many years, and trying to make sure that if there are
project lists, that our projects are on that list. Then finally, there is the issue about government, which has
frankly taken aback seat to making sure that our projects are on any project list. We continue to spend
some time letting folks know we're still on the map. Reminding them of the projects that are important to
Kent. 167 HOV lanes, the 405 work(and 405 work should start from the Kent end not the Bellevue end,
because by the time you get to Bellevue you'll run out of money), and even four lanes on SR18 and
SR509. So those four projects are really important to us and we want to make sure those stay on.
The second thing we've been really hard at work on is the Urban Services Transit Study, which is
Shopper Shuttle out to the industrial area. Our efforts on this, trying to get some legislation to do a study
or to do a pilot project have made Metro more friendly toward our idea of having this kind of service.
Jacki Skaught has discovered a deal that Metro is giving Renton - $50 a month van pools, from their
transit station out to different employment areas, which would work just fine from the train station out to
the industrial area- so she has a meeting that Doug Levy's going to sit in on with Metro,to see if we
couldn't get that same deal down here in Kent. That bill has now become an amendment to the House
Transportation Budget through the help of Geoff Simpson,which is a pretty big deal for our first time
guy. But there's no money in it. So, what we have said is, rather than funding the pilot project (in other
words, having a year's worth of money and then being forced to come up with the cash later, which I
don't know in a tight year if we would be able to do), what's more important in our long term goals is to
have the study that identifies and recognizes the need for this type of service. That then will give us the
authority that we lack to actually have our own, which is the ultimate hammer to hang over Metro to be
responsive to us. These are the different angles we're working, and those are the two things that are
taking the majority of our time. The Special Session will be in 30 days.
Council Workshop,4/17/01 14
Tim Clark—Even as the report here says, the struggle over the regional vehicle is to be an oversight on
projects for transportation funding and it is a fight that is truly undecided but is critical in terms of the
stages at this point in time. If we do not get a tax package on the November ballot, what will happen is
we are stuck with whatever money they set aside, however they choose to do it. The danger there would
be, of course, with a limited amount of money and no new resources it would be a major struggle for the
east side to come up with the 405 and the 520 project monies (which would suck up every dollar in sight).
These two proposals were the major ones, but there was more discussed in here, about the Patterson
Senate Bill, which would have given all the cities a good chance at having control over their own fate and
still be a part of the regional mechanism versus the house democratic one which is the one that Karen
Keiser is supporting at this point. That is, the standard for the regional decision would only be 50% of the
city's and 50%of the population and so the danger would be in Seattle/Eastside pull—there goes all the
money and we'll see nothing. So I would really urge, if you have any pull in either the House D's or R's,
that you tell them that in order to safeguard our own citizens' investment and have some share of the
money that they are sending down, it should come back into the community. The best vehicle is, in fact,
the Senate Bill because by requiring a super majority to actually be the final authorization of funding,
everybody gets to the table, everybody has a say and you've got to have a real critical mass in order to get
a regional package together.
Judy Woods—Would it be appropriate to send a letter to all of our legislators signed by all of us?
Tim Clark--Absolutely.
Dena Laurent—Let me draft that for you. Your message would be advocating something more like the
GNA model.
Tim Clark—The catch is the mechanism that determines when the money gets released.
The workshop adjourned at 6:10 PM.
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