Monday, April 13, 2009

Is Judge James Payne Politically Savvy Enough to Be Governor?!?

Sometimes when you watch political events, you can't help but speculate on what goes on behind the scenes. This is true of the debate over an ombudsman for the Indiana Department of Child Services (DCS).

With the support of DCS Director, Judge James Payne, State Representative Charlie Brown's (D-Gary) ombudsman bill (HB 1602) cleared the House 98-0. This should have spelled trouble to advocates. You get unanimous support for resolutions like, "We declare clear air is sorta nice," not on bills giving power to dig into the inner workings of a governmental agency, and definitely not from the guy who runs that agency.

"This bill must hamstring the ombudsman," I told myself as I read it. Yep. Feeble. Not completely terrible, but gravely flawed. The keys to having a good ombudsman are: (1) independence; (2) access to needed information; and (3) public accountability, be it to the actual public or their elected representatives.

HB 1602 failed on the first count by (1) giving the Governor the authority to appoint and remove the ombudsman at his whim and (2) housing the ombudsman office under the Department of Administration, an agency controlled by the Governor. Ideally, an ombudman would be appointed by legislative leaders in consultation with the Governor.

Though he left appointing authority with the Governor, Senator Tim Lanane (D-Anderson) authored a superior bill. Using the Inspector General statute as a guide, Lanane's bill states that an ombudsman, once appointed by the Governor, would serve a term of years equal to that of the Governor. In addition, he or she could only be removed for malfeasance, and his or her salary could not be cut during the term of service. Senator Lanane wasn't reinventing the independence wheel; his bill drew from Federalist Paper No. 48. How could these notions be controversial, unless your goal is to NOT provide independent review or investigation? His bill never moved.

On access, HB 1602 had no subpoena power for third-party records, and it only permited access to records from governmental agencies. On public accountability, the bill required the ombudsman to report to the complainant only. But there was no requirement for even a cursory result of the investigation to be provided to members of the Indiana General Assembly, or the public, even if the complainant agreed. Why not permit legislators to review the reports for their constituents? (Of course, I suppose the complainants could "go public" with their results).

So, a frail bill went to the senate judiciary committee, and inexplicably, got weakened. In the senate version, the ombudsman reported directly to the FSSA commissioner. BUT (and here's the weird part), the duties of the ombudsman, which initially included nothing more than "investigate complaints" and "write a report," are expanded to include:

(1) establish a public education program to secure and ensure the legal rights of children;

(2) periodically review DCS policies and procedures, with a view toward the safety and welfare of children

(3) recommend changes in procedure for investigating report of abuse or neglect and overseeing the welfare of children under juvenile court jurisdiction; and my personal favorite...

(4) examine policies and procedures and evaluate the effectiveness of the child protection system, specifically the roles of DCS, the court, the medical community, service providers, guardians ad litem, CASA, and law enforcement agencies. (If this last one isn't an effort by DCS to give the ombudsman the authority to throw blame on everybody else, I don't know what is!).

This amended bill passed 9-0, but instead of going to the Senate floor, it got re-routed to the Senate Appropriations Committee. Senator Kenley scheduled a hearing, at which Representative Brown testified that all of the amendments in the Senate version were made after consultation with DCS.

WHAT?!?!? Why would DCS EXPAND the ombudsman's statutory duties?

Stay with me. If you limit an ombudsman's authority to JUST investigating complaints, that's what he or she MUST do. Give him broader authority to tweak your internal operations, and he or she can basically do whatever he or she wants. What starts out as oversight of DCS ends up being a potential $454,000 allocation for additional DCS staff. The ombudsman can even take this money and do a PR campaign to recruit more guardian ad litem volunteers.

Were I a cynic (which is like saying, "were I me"), I would point to the political genius of Judge Payne and advise that this man has the savvy to run for Governor. Judge Payne clearly smelled the air of ombudsman inevitability. As the advocates gained steam in their rock pushing, he ran alongside voicing Mark Anthony-style support, and at the key moment, he redirected the rock to a new target.

At the appropriations hearing, Judge Payne said DCS supported the bill, but any objective observer could tell he didn't, as he undercut his own testimony by telling Senator Kenley that he understood the budget is tight and funding the ombudsman will be difficult. It's a wink and nod between two political heavyweights, and it was breath-takingly effective. At the end of the hearing, Senator Kenley killed HB 1602 by failing to put it to a vote.

As I testified after Judge Payne on the bill, though, I found myself in a weird place...agreeing with Senator Kenley's ultimate decision. To do the ombudsman function meaningfully, you have to have a decent budget, and we're talking about $150,000. I realize in the moment that certain death for this bill is best, and I'm tempted as I'm leaving the table to blurt out, "Give the $150,000 to Child Advocates!" (At least then we can get guardian ad litems on all Marion County CHINS cases from the start).

I have no sadness that this bill has died. Sham review or investigation is the same as no review or investigation, in my mind.

But I realize that maybe Judge Payne did his job TOO well. Had the watered down bill passed, when advocates asked for tweaking next year, legislators would have likely said, "Why are you still crying?!? We gave you a bill last year!?!"

At least now advocates can try to draft a reinvigorated bill. But advocates have a worthy adversary. It would be foolish to underestimate him.


1 comment:

Lord Peter said...

Ideally, an ombudman would be appointed by legislative leaders in consultation with the Governor.This would violate the Indiana constitution - see Tucker v. State and Book vs. State Office Bldg.

Also, I think that the "commissioner" in charge of the ombudsman is the commissioner of the DoA.