Copyright 2005, The Recorder

Marin court audit creates test for Prop 59

(The Recorder 4/18/05) -- Allegations of a conflict of interest by the Marin County Superior Court's chief executive officer may lead to a test of an open government law's application to the judiciary.

On March 31, John Montgomery abruptly left the job he had held since 1996, giving just two days' notice. Since then, revelations have surfaced that Montgomery owned a home with Linda Lau, a contract worker Montgomery hired and paid $670,000 over a three-year period.

On Friday, the California First Amendment Coalition requested a copy of an operational audit of the court's operations that is being conducted by the state Judicial Council.

The audit could shed some light on whether Montgomery gouged taxpayers.

The California First Amendment Coalition's executive director, Peter Scheer, says that while the judiciary is statutorily exempt from California's public records and open meetings laws, it is not necessarily exempt under Prop 59 -- the open government measure that voters passed in November.

"We think it's exactly the kind of situation where Prop 59 ought to apply," said Scheer, a former editor and publisher of The Recorder and CalLaw. "We're seeking records for which there is clear public interest, and to which there is exactly zero need for confidentiality of any kind."

Court officials said Montgomery gave no reason for his departure. Neither did Lau, a software consultant who worked in Montgomery's office and left her job only days before he did. Montgomery and Lau couldn't be located for comment Friday.

Last week, the Marin Independent Journal reported that Lau and Montgomery own a Napa home together and that Lau earned $674,000 over the past three years -- all on contracts that Montgomery had personally approved. State court rules bar court employees from awarding contracts under real or perceived conflicts of interest.

Two of Montgomery's closest co-workers -- his boss, Presiding Judge Terrence Boren, and Kim Turner, the assistant executive officer and Montgomery's interim replacement -- would not comment on whether they knew Lau and Montgomery were involved in a relationship.
But, Boren said, "There is a responsibility of employees to disclose any conflict of interest or any apparent conflict of interest of their supervisor."

Marin County judges have not decided on a replacement for Montgomery. "The whole thing was very sudden," Turner said. "We're still kind of bailing water here."

Officials with the California Judicial Council did not return calls seeking comment.

Turner said Montgomery approved Lau's contracts, though he may not have been officially authorized to do so. "That delegation is supposed to be in writing, and we had no delegation here," Turner said.

Turner said the Judicial Council's audit was "more operational" and began in January, in anticipation of moving the courts from the county to the state's finance system. She said a draft of the report is expected later in the week.

A Judicial Council spokesman had told the Marin IJ that the results of the audit wouldn't be made public. Turner said she thinks it should. "I think there is a public interest, and taxpayers have a right to view these kinds of documents," she said.

The California controller's office is also conducting an audit of the Marin County courts. Spokesman Garin Casaleggio described the audit as routine and said it would encompass how well the courts collected fines and fees and whether they were spent in the right places.

Turner said the judiciary audit is wider in scope and would be more likely to uncover problems if any exist.

CFAC believes Prop 59 creates a new constitutional right to access some court records. Besides the audit, it is seeking "any consulting agreements" for Lau's services from 2001 to March 2005, Montgomery's employment contract, and his expense reports.

Scheer argues the state's court system, the Judicial Council and the Administrative Office of the Courts are like all other state agencies under Prop 59 and that people have the right to access records about the "conduct of the people's business."

"We're deliberately seeking opportunities where I would expect the Judicial Council and the judges could see the need and the appropriateness for public access, and we are scrupulously avoiding the sorts of claims to access that judges understandingly get very nervous about," Scheer said.

That the court system itself may ultimately have the last word on the matter is "ironic and awkward at the least," Scheer said. "But that's not unprecedented. … If a conflict of interest is inescapable, then we just live with the conflict of interest."

By Warren Lutz