Fresno County judges assailed in reports about probation chief

The investigation of Fresno County Probation Chief Rick Chavez was riddled with errors, misperceptions and omissions, Fresno County’s top lawyer says in response to an investigation done on behalf of Fresno County judges who are calling for Chavez’s dismissal.

Fresno County Counsel Dan Cederborg sent the letter to the judges this week. He didn’t contest the ability of the judges to remove the probation chief, but he contends that they are on shaky ground in their efforts to dismiss Chavez.

Cederborg wasn’t the only one weighing in this week on the judges’ recommendation two weeks ago to remove Chavez.

Chavez’s attorney, Barry Bennett, is alleging some judges who participated in making the dismissal recommendation had conflicts of interest because of their working relationships with Chavez or because they are involved with groups that make recommendations about his office, including the county’s Juvenile Justice Commission.

The Fresno County Board of Supervisors weighed in Tuesday, saying they have concerns over the judges’ actions.

The letter two weeks ago from the Executive Committee of the Judges of the Fresno County Superior Court told Chavez he was being removed as probation chief because he “exercised poor judgment” and “failed to communicate” with the presiding judge about issues in his department.

He allegedly changed policies and failed to properly oversee conflicts of interest with his employees.

“In summary, what comes through is that Mr. Chavez admits to the vast majority of offenses,” says Joe Wiley, the judges’ lawyer. “He offers excuses for why (his behavior) was permissible.”

But Cederborg says the investigation was faulty and omitted significant events that triggered the judges’ inquiry.

In some instances, county staff denied that they were correctly quoted in the investigative report by Masa Shiohira, a lawyer in Wiley’s firm who wrote the report for the Fresno County Superior Court.

Shiohira says in his July 25 report that the judges hired him April 7 and that he interviewed 25 people, including Chavez, from April 21 to July 8 and reviewed nearly three dozen documents.

But with the exception of Shiohara’s interview with Chavez, none were recorded, Cederborg says. Shiohara’s finding that Chavez was dishonest was based on the investigator’s perceptions from his interviews, Cederborg says.

He also says that Chavez was placed on leave without notice of the allegations against him. More than two months passed before Chavez became aware of the allegations of inadequate staffing of juvenile corrections officers, allowing employees to work at a nightclub and improper policies, Cederborg says.

“Charges of dishonesty against a peace officer have very serious consequences, and the county has grave concerns about the paucity of the evidentiary record that might support the investigator’s conclusions,” Cederborg wrote.

Chavez was placed on paid administrative leave by the judges in April without any discussion with Fresno County officials. Fresno County pays Chavez’s $139,020 salary, but the judges can remove him from his job under the rules overseeing that position.

The judges’ action led the Board of Supervisors to place a measure on the November ballot that would give them jurisdiction over the probation chief’s position and place the judges in a consulting role.

Anonymous letter

Perhaps the most glaring omission, according to Cederborg, was an anonymous letter that triggered the investigation in the first place. The letter took issue with Chavez’s management of the department and policies he supported after taking the job in 2013.

The letter came after Chavez learned about county weapons training contracts with a Kern County educational organization called Westec, Cederborg says. Probation employees were serving as training instructors and earning money through the Westec contracts during normal work hours while using paid leave time from the probation office.

Chavez stopped the practice shortly after he was hired. The employees who participated in teaching the class became angry with Chavez and the Probation Department’s personnel services manager, Melissa Madsen. The letter that followed included many of the allegations detailed by Shiohira.

“Chief Chavez informed the range masters that they could no longer continue to be compensated by Westec while performing instructional duties for training that is put on by the department,” Bennett says.

Bennett says Michael Elliott, who was named interim probation chief by the judges after Chavez was placed on administrative, is one of the department’s range masters and had worked under the Westec contract.

Bennett and Cederborg question why Shiohira never mentioned the Westec contracts in his investigative work.

Cederborg says it’s not conclusive evidence of bias by the investigator, but “it is concerning that no mention of this background information is given in the report.”

Cederborg says the county is investigating the Westec contracts, which may violate county rules.

Board of Supervisors Chairman Buddy Mendes says he didn’t like the arrangement. He says using paid leave and getting paid under a county contract equates to double-dipping, and he supported Chavez’s decision.

“I didn’t like the way it sounds,” he says.

Wiley, the judges’ lawyer, wouldn’t comment on the issue.

More juvenile officers

Cederborg says the report to the judges about a shortage of juvenile corrections officers incorrectly quoted Paul Nerland, the county’s personnel director. Nerland told Cederborg that he and Chavez had discussed juvenile correction officers’ vacancies and the situation also was discussed with Nerland’s predecessor, Beth Bandy.

The county takes the juvenile corrections officer openings seriously, but the judges’ report suggested no new strategies were proposed, a statement attributed to Berta Mims, another personnel services employee interviewed by Shiohira, who denied saying so, Cederborg says.

Nerland says he was aware of juvenile corrections officers’ vacancies, contradicting a statement in the judges’ report. He says the backlog in hiring was due to time needed to get results from polygraph reports and background checks, which wasn’t mentioned in the report to the judges.

In the notice to remove Chavez, the judges described “a severe erosion of morale” at the juvenile justice center. They referred to a “scathing letter” from the former union, the Service Employees International Union, about forced overtime due to vacancies and short staffing.

Because of a change to an automated assignment program, overtime was assigned differently, but overall overtime for the juvenile justice campus had not changed significantly, Cederborg says.

His letter added: “The report leaves out any of the context concerning the difficulties the county has had retaining juvenile correction officers, emphasizing only the vacancies that existed.”

Judges’ conflict

Bennett suggests that five of the eight judges who voted for Chavez’s removal have a conflict of interest.

He says Presiding Judge Kimberly Gaab and Judges Jonathan Conklin, Gary Hoff, Alan Simpson and Kimberly Nystrom-Geist were not impartial and “noninvolved” reviewers as state law requires. The notice of intent to dismiss Chavez was signed by the five judges plus judges Arlan Harrell, Tyler Tharpe and Mark Snauffer.

Gaab and Conklin are “material witnesses” because they participated in a January meeting with Chavez about the Probation Department, as is Simpson because he participated in a Juvenile Justice Commission meeting that was critical of the Probation Department’s hiring processes and morale, Bennett says.

Simpson later reported those findings to Nystrom-Geist and Gaab, Bennett says.

Hoff, when he was presiding judge, met with Chavez shortly after he was named probation chief in 2013 and discussed probation issues with him, which makes him a potential witness in any future proceedings regarding Chavez’s dismissal.

Other conflicts

As for allegations of improper departmental policies, Cederborg says Chavez was within his authority and broke no rules when he approved changes allowing probation officers to take off their guns in the office or wear other clothing when they weren’t on an assignment requiring a uniform.

Chavez also had suitable policies in dealing with nepotism and conflict of interest concerns, Cederborg says.

Specifically, Cederborg says, in the one case involving a family member of Madsen, the personnel services manager, she was excluded from the decision-making process.

The judges noted that employees may be hesitant in reporting issues involving Madsen’s family members.

Cederborg says he agrees that such a concern is valid and notes that reporting alternatives for employees could have been spelled out better.

“Employees should have a clearly defined alternative reporting path if they are uncomfortable for any reason for using the regular reporting path for complaints,” Cederborg’s letter says.

He says the county can’t comment about whether that policy has been communicated to probation employees.

The judges took Chavez to task for allowing his second-in-command, Rosalinda Acosta, and probation officer Ray Martinez to work at Club Legends, a nightclub at Maroa and Shields avenues. Martinez owns the liquor license and Acosta works there outside office hours.

The investigative report by Shiohira says Martinez couldn’t own a liquor license because of his status as an officer. However, the state Alcoholic Beverage Control board’s rules say he is allowed to have a license.

The judges’ investigation neglected to acknowledge that the license was acquired by Martinez in 2010, three years before Chavez’s promotion, and was approved by his predecessor, Linda Penner. Acosta’s employment at the club also was allowed by Penner, Cederborg says.

County officials are concerned, however, that Acosta continued to work for Martinez after she was promoted. They say Acosta would need to be taken out of any personnel decision-making process that involves Martinez.

Supervisors weigh in

Fresno County supervisors were discouraged to learn that the investigation was launched because of an anonymous letter and that the court’s investigative report contains so many inaccuracies.

“We are concerned that the effort to discharge the chief is based on a pretense of misconduct instigated by one or more judges with whom the chief may have had personal differences of opinion,” the supervisors’ letter says.

Supervisors say they have no intention to inappropriately influence the judges when it comes time for the full vote, “but we respectfully request that you thoughtfully examine the charges and contemplate how and why actions were taken by your executive committee.”

When it comes time for all the judges to vote, they suggested that they avoid “pressure from within your ranks to present a solid front.”

That vote on whether to dismiss Chavez is expected in the coming weeks.

This story was originally published August 19, 2016 at 3:21 PM with the headline "Fresno County judges assailed in reports about probation chief."