Judge orders Clerk to spend non-existent funds

The Chief Judge of the 18th Circuit Court, after accusing me of failing to provide requested financial information and failing to discuss staff and operational changes with the Judges, is issuing an order forbidding the Brevard County Clerk of Courts from implementing cost saving changes in light of a $1.5 million shortfall, 20 layoffs, and the loss of 25 more full-time equivalent employees (out of 330) while we work on reduced work schedules of 36 hour weeks.

Rather than first having the courtesy to question me as to the veracity of the above claims, the Judge chose to copy every single Judge in Brevard and Seminole Counties with my alleged shortcomings. Had he simply questioned (or even accused) me first he would have found the Clerk’s Office provided detailed financial information (to date and extrapolated) for our office, as well as detailed financial and personnel information for the savings we believe would be achieved through centralized criminal courts, centralized jury trials, and a full time judge in the jail, AS REQUESTED by about a dozen Brevard County Judges. We provided all data as requested. For the data not requested, the savings of moving the Civil Court Clerks, I answered below.

I have been accused of unilaterally implementing changes and failing to meet with the Judiciary. This is also false. We met with our lead Brevard County Judge on the proposed changes SIX WEEKS ago. if we met six weeks ago on this issue, and I was going to implement the changes unilaterally, we would have implemented them over a month ago. The Brevard County Judges requested a full month to meet and discuss this ‘critical’ issue, and we waited. The meeting occurred and I was told NOTHING of any results. Not Wednesday the day of, not Thursday. I was to meet with our lead Brevard County Judge Friday but he had to cancel due to trial (no problem, he is one of our workhorse Judges) and we rescheduled to Tuesday. After hours Friday, before I had even met with our Brevard County Judge, I recieved the e-mail below from the Chief Judge in Seminole County.

By the end of last week we were forced to lay off 15 more employees due to declining revenues, some because of the economy, some due to Legislative changes in the last few years raising fines and fees for the State and the Judiciary as well as the January emergency session which moved certain fines and fees directly from the Clerks to the State and the Judiciary. Based on the Judicial power play in February, aided and abetted by the Office of State Courts Administration (OSCA) I now see why so much of our funding has been moved. OSCA has been advocating a complete take-over of the Clerk’s Courts employees and claiming such a move would save $200 million (out of $500 million), telling the Legislature the Clerks are sandbagging and squandering a few hundred million dollars a year. Speaking from a County where we have gone without pay raises for three years, did away with sick leave, and have hung on each year by the skin of our teeth in the courts area I was more than a little angered by the false accusations.

The Clerk’s Office has made suggestions for many years to save expenses on courts operations. Our perpetual plea for centralizing criminal courts in the most modern and safest courthouse, centralizing jury pools and trials in the courthouse with the largest number of courtrooms and jury areas, and providing a full time County Judge in the jail to moderate the pace of the jail proceedings and allow for more pleas to be taken in the jail, has fallen on deaf ears. When asked to sum up the cost savings of these proposals just for the Clerk, we estimated over $500,000 annually (14 or so positions). Our numbers and ideas were once again ridiculed by a few who have no experience or history with any of our suggested changes.

It is hard to say where this shall go. One thing is certain, as the Clerk of Courts I cannot legally order employees to come to work for free. Our revenue is on a daily basis, not a beginning of year appropriation, and if we do not have the money we cannot pay all of our employees – and must reduce. I have told our employees not to worry about maintaining the State’s performance standards for everything under such conditions, but instead we must focus on the highest priorities within the courts. In my book, Criminal Courts must take precedence over Civil Courts, but evidently based on last week we are to be ordered to carry two gallons of water in a one gallon bucket. Just as King Canute could not order the waves to roll backwards, the Brevard County Clerk’s Office cannot lose the equivalent of over 50 people (now) and perhaps another 50 in May (Summer furloughs and layoffs) and still do everything for everybody as we did at the beginning of the fiscal year.

I never claimed to be a lawyer, but as an engineer I can tell you quite plainly one cannot overrule the rules of mathematics.

Below are Judge Simmons’ e-mail to me and my response.

—–Original Message—–
From: Scott Ellis [mailto:Scott.Ellis@brevardclerk.us]
Sent: Friday, March 20, 2009 10:47 PM
To: Clayton Simmons; Scott Ellis
Cc: 18thCircuit Judges
Subject: RE: Order
Dear Judge Simmons,

I would like to know where you get the facts for the comments in your letter.

Evidently this letter is meant to be a let all tell all letter, so let us tell all.

I advised Judge Dugan well over one month ago of the revenue situation and of the proposed changes. I offered to meet with you, you did not return my phone call and did not offer to meet after the investiture, You claimed you called me multiple times, you called once and I returned the call the day of the investiture. You did not call the following week but instead chose to send me a letter with various legal citings.

I met with the Brevard County Judges. They were advised of the changes as well as briefed on the financial situation. They asked me to wait another month until they could meet this week, I did wait while in the meantime had to plan for another 15 layoffs. The Judges met Wednesday, I received no input from the meeting, none, thus we plan on moving ahead with the changes in transition next week and fully the week after.

You say I failed to produce meaningful financial data concerning changes, that is outright untrue. I submitted all the data I was requested to submit on central criminal, central jury, and a full time judge in the jail. I was not asked to submit financial data for the Civil Court Clerk data, but that would be easy – FIVE full-time court clerks at about $200,000 annual savings. I find it odd you claim I had unilaterally implemented changes when they had yet to occur and claim I failed to submit requested financial data when I clearly did. I would think the Brevard County Judges, all of whom received the data, would have copied you with it. It is one thing to dispute the data, which to date you have not, and another to accuse me of failing to submit the data. It was submitted and done so IN DETAIL.

I do not have to cast the courts as a contributing source to our financial woes, they are a contributing source. While we had hoped for the Legislature to review the various fee and fine structures and money movement made during the last two sessions to address funding issues, OSCA and the Judges chose to go on a final weeks power play to wipe out the Clerk’s Offices. Surely you cannot deny this, nor can you deny you traveled to Tallahassee to vote to take over the Clerk’s Office and did not have the courtesy or courage to inform me of what you had done. I found out from Tallahassee about ten days after the vote. Judge Silvernail was in Tallahassee earlier this week to speak in favor of the bill moving the Clerk’s funding even though the Judiciary was not involved. The Brevard County Staff Attorney, Ashley Hardee, has been surreptuosly getting hardcopies of e-mails I sent our employees and distributing them to the local Brevard County Bar, and I assume from your comments, yourself. So, yes, Judge Simmons, I clearly state the Judiciary is a contributing factor to our financial woes.

The cost savings from pulling back the Civil Court Clerks comes from the obvious, they are to be re-assigned to other duties NOT in Court Clerks to take the places of those lost due to layoffs. I am not sure what kind of mixed hearings you mean, but clearly if we reduced the numbers of Civil Court Clerks we would not be covering every action of the courts. It is not simply being in court but also the work-up for court.

Today I went to Viera to meet with Judge Dugan, but due to the constraints of his trial he could not make the meeting. In fact I have been available to meet with anyone at any time over the last few months.

The cost savings we seek are not a matter of convenience as has been stated by one of your Judges, but a matter of financial survival. You may speak all you desire of your definition of statutory requirements, but the facts are if we lay off 20 people now, 30 people in another month, and furlough 30 more a month later (out of the original 350) it is impossible for us to do everything then we did in the past. I have offered other ideas for cost savings, some taken, some ridiculed without a basis in fact or math.

I spoke to those in attendance at our quarterly meeting, which included a Judge, Court Administration, the SAO, the PD, the Sheriff, and State and County probation, to request they lay out the most important tasks we perform for them as we will not be able to do everything as timely as before.

I do not know what more you want, but I can guarantee you if we try to run for the next few months with full budget as planned for 2008/09 we will be be broke and closed before the fiscal year ends.

We have to take appropriate action to deal with the large losses in people and revenue, and I expect you as well will take whatever action you deem necessary based on your understanding of the law.

I too regret it has come to this, but the Judiciary’s decision to claim to the Legislature the Clerks had large amounts of money just waiting to be saved by placing Clerk’s employees under Court Administration has clearly fractured any trust between the Clerks and the Judges as well as left a great many counties, such as Brevard, which were already in tough financial condition and have been so since the beginning of Article V, even worse off than before. It will be quite apparent as our office shrinks dramatically that the end result of the final week actions in Tallahassee successfully harmed all of us in the courts system.

Scott Ellis
________________________________________
From: Clayton Simmons
Sent: Fri 3/20/2009 5:28 PM
To: Scott Ellis
Cc: 18thCircuit Judges
Subject: Order

Dear Mr. Ellis:

I regret that you have chosen to unilaterally implement changes in clerk support of the court without speaking to me first and in contravention of clear statutory requirements that you clear any changes in support with the Chief Judge in advance.

I wrote you on February 18, 2009, in response to your undated memo circulated on or about February 3, 2009, and advised you that the court did not approve of your proposed unilateral changes in clerk services.

The Brevard Judges met with you February 23, 2009, and voiced their concerns about these proposed changes and challenged you to produce meaningful financial information that would justify these changes. To date you have not chosen to honor the court with that data.

I realize that your office, along with every other county and state office in Florida is experiencing serious financial difficulty, but that does not justify ignoring well established law. I further realize that you are attempting to cast the courts as the cause of your financial woes, however, you have not yet shown why having clerks at some types of hearing and not having them at others (when most of the time different types of hearings are mixed together on the same judge’s docket in the same court room) would result in any material savings.

Accordingly, at the request of the Brevard Judges, after careful consideration by the Judges of what hearings require clerk support for the efficient delivery of justice, I am issuing the attached order. I have signed the original and will email you a scanned copy on Monday and mail you a copy of the original by U.S. mail. The order is effective immediately.

You will note, in recognition of your financial issues, that the Court is authorizing you to implement some of the changes in support that you unilaterally announced, however the other changes you unilaterally announced are not acceptable and may not be implemented.

I regret that it has come to this, but the court remains open to working with you in any reasonable way to optimize the efficient use of your personnel for necessary court functions.

Respectfully

Clayton D. Simmons
Chief Judge
Florida’s 18th Judical Circuit
Brevard and Seminole Counties