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Breasts, toes, and probation

Bexar County fingered in new state audit, sexual harassment suit

Photo Illustration by Chuck Kerr

 

It’s all high times and misdemeanors at Bexar County’s probation department — and I’m not referring to the behavior of the department’s clients. How bad is it at Bexar County’s Community Supervision?

Not taking into account the administration’s unwillingness to reconsider months of revocations triggered by drug tests that were more than likely faulty — it’s bad. [See “Test-tube maybes,” October 1, 2008.]

Without even considering the persecution of a highly visible union-organizing employee and an internal clampdown on union members — it’s still bad.

Beyond the “subjective” preponderance of evidence — to which we must now add a fresh sexual-harassment suit against Probation Chief Bill Fitzgerald — some newly released numbers reveal embarrassingly serious failings in the department.

Let’s break it down chronologically.

A December 1, 2008, report to the state Legislative Budget Board by the Texas Department of Criminal Justice reveals that the number of felony revocation rates in Bexar County shot up 80 percent between 2005 and 2007. The trend is doubly worrisome because revocation rates have dropped significantly in the state’s other major metro areas. During this same time period, check: Harris County (down 13.6 percent), Dallas County (down 10.7 percent), Tarrant County (down 16.8 percent), El Paso County (down 8.4 percent), and Travis County (down 19.6 percent).

Holy urine-analysis jokes! What gives?

To make sense of the rising numbers, the Texas Department of Criminal Justice sent a team of auditors in February 2008 to dig through Bexar County Probation files. After reviewing 198 randomly selected cases, the five auditors reported back that the department’s case managers had not been trained in the basics of so-called “progressive case management” methods. Progressive case management, supposedly adopted by Bexar County in 2005, is a methodology aimed at reducing the number of probationers that end up being sent back to jail by providing case managers with a range of punishment-reward options. According to the state, this should include reduced caseloads to allow for more aggressive monitoring, use of inpatient and outpatient drug and alcohol treatment options, and options for that carrot of carrots: Early probation termination.

All departments receiving funds through CJAD are required to use progressive case management. Bexar County Probation recently received more than $6.5 million from the state for supervision and caseload reduction.

The auditors’s revocation-compliance review, released last month, also found that case officers followed the required progressive sanctions model in only 35 percent of parole violations that didn’t include a new arrest, and in only 23 percent of those probation revocations involving new arrests. Not only had most case workers not been trained in using progressive sanctions, managers weren’t stepping in to forge alternatives to revoking probation, the auditors wrote.

“Case files directed to courts with a [Motion to Revoke, or MTR] reflected few manager interventions when other levels of sanctions within the PSISM remained available,” the audit states.

The department’s other failings include overall poor management of case records and “conflicting practices” between Probation, district and county court-at-law judges, and the District Attorney’s office. Case managers told the auditors that the District Attorney’s office was not working with them to implement progressive sanctions.

It’s a charge the DA’s office denies.

“If you look at Judge Reed’s record, she started the first progressive-sanctions system in the courthouse,” said First Assistant DA Cliff Herberg. “She did that on her MTRs.”

Herberg says the DA’s office has “little control” over what judges do with Motions to Revoke, and seemed to put the onus on the district and court-at-law judges who oversee the probation department. “Even if we make a recommendation, it’s the judge” who chooses whether or not to apply progressive sanctions, he said. “This has to come from the judges. They have to decide whether they want to implement a progressive-sanctions model they are all going to follow.”

Herberg added that, in response to a Public Information Act request submitted by the Current, he asked a staffer to investigate where the courts are on progressive sanctions and found a mixed level of acceptance: “Some courts are not following, but at least looking at the deal.”

Close on the heels of justice comes the matter of money.

Could Bexar County’s poor performance mean a drop in state funds, we asked CJAD Director Bonita White. “It is possible that CJAD will decrease funding for Bexar CSCD in the future,” White said. “However, our goal is to work with the Bexar CSCD to help them keep more probationers successful, and thereby truly increasing public safety.”

The DA’s office, the Probation department, and CJAD reps met early last year “to discuss the need for further collaboration on the use of the local progressive sanctions model,” White said. The outcome of those talks is unclear.

Kathy Cline, deputy director of operations and legal counsel at Community Supervision, failed to reply to a request for comment on the audit results, though she did provide several documents and a large collection of emails in response to the Current’s Texas Public Information Act request.

While a large number of the more than 700 pages of emails (fully 100 of the first 170 pages) supplied have been redacted in black censor lines without explanation, emails about an earlier audit suggest the department was in much better shape back in 2006.

Paul Kosierowski, former deputy chief, wrote the entire adult-probation staff to relay the results of a CJAD audit that investigated whether case managers were using progressive sanctions, whether they were documenting their efforts in the case files, and if the case files demonstrate they understood the purpose of progressive sanctions. In this alternate universe, Kosierowski wrote, the “resounding answer” was “YES, YES, YES, AND, ONE MORE TIME YES!!!!!”

Those must have been the days.

In a possibly positive signal that Bexar Probation is trying to address problems identified in the 2008 audit, several of the same auditors that investigated the department have since been hired away from CJAD by Bexar Probation, according to a TDCJ spokesperson.

Meanwhile, the department’s caseloads remain high. Each case manager in Bexar County handles an average of 119 cases at a time, as compared with the state average of 107, according to White.

Fired union organizer and former chief probation officer Sherri Simonelli suggested Fitzgerald has been making staffing decisions based on his own political scramble to stay in office, particularly in choosing to staff more caseworkers on misdemeanor cases.

Fitzgerald “placed too many officers in misdemeanor courts because he is trying to keep the misdemeanor judges happy. His political standing is weak on that side of the house and he needed to bolster it with extra officers for those courts,” Simonelli said. “I feel he misused the state funding on purpose to keep his job.”

The case against bad drug-lab results also appears to be strengthening, as local attorney David Van Os continues to interview former probationers. And a new suit, filed on January 9, has joined the pile at Fitzgerald’s feet.

Probation officer Michelle Soliz Garza is suing Fitzgerald and Bexar County Supervision in district court for $250,000 for what she describes as a sustained campaign of sexual harassment by Fitzgerald, aided by others in management. According to Garza’s lawsuit, an example of that harassment occurred at a staff gathering at Chris Madrid’s, where Fitzgerald grabbed and fondled Garza’s foot and pronounced his erotic affection for feet over breasts.

The Current’s not sure whether Fitzgerald prefers his feet large or more classically formed, one detail that will hopefully become clear as this third lawsuit naming Fitzgerald rolls on. •

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