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Oversight questions continue to plague inspector general and Probation Administration

December 2, 2018

An on-again, off-again argument between two branches of Nebraska government is back on.

Nebraska Ombudsman Marshall Lux sent a lengthy memorandum to state senators in mid-November laying out his concern about a bitter argument between the legislative and judicial branches regarding oversight.

What’s at stake, according to Lux, is whether the state’s Probation Administration will allow Julie Rogers, inspector general for child welfare, to investigate as she sees fit cases of death or serious injury of children involved in the juvenile justice system.

The juvenile justice system has been managed by the state’s Probation Administration since 2013, when state law transferred responsibility for all delinquent and youth status offenders from the Department of Health and Human Services to the Administrative Office of Probation.

Probation Administration is supervising hundreds of children and adolescents under the state’s authority and is responsible for spending millions of taxpayer dollars, Lux said.

“Clearly these are appropriate areas for legislative oversight,” he said.

Rogers’ investigations of death and serious injuries are about the protection of vulnerable children, he said, a sincere effort to look deeply into tragic events so that they can be avoided in the future.

Without Rogers’ oversight, for example, the December 2017 report on sexual assault of foster children and youth in the juvenile justice system would not have have brought to light.

“We can’t have children dying and being sexually abused, among all the other terrible things that could happen, and not be trying to learn from it,” Lux said. “We can’t undo what’s happened, but we can try to learn from it and make the system better.”

The Office of the Inspector General of Child Welfare was created by the Legislature in 2012 to provide an independent review of the juvenile justice and child welfare systems. It was seen as a way to improve transparency and accountability in those systems.

But several times, Probation Administration has offered limited cooperation with Rogers, who is also an attorney, Lux said.

It’s more than an argument over arcane matters of protocol, Lux said.

Probation Administration officials describe it as a conflict over separation of powers. It’s a crisis when branches of government are arguing over each other’s limits of authority, Lux said.

Probation Administration sent new demands to Rogers this summer regarding her investigations, “without warning, prelude or mutual deliberation of any kind,” Lux said.

Officials declared that direct communication with its office “will not be responded or replied to in any manner,” and the office canceled meetings that Rogers had arranged related to an investigation.

They directed their staff not to respond to emails, telephone calls, texts or other such communication from Rogers. They electronically blocked emails sent by Rogers to Ellen Brokofsky, the probation administrator.

And any requests for interviews must be accompanied by a list of specific questions.

Those barriers, Lux said, will seriously inhibit Rogers’ ability to carry out meaningful and competent investigations into child deaths and serious injuries.

State Court Administrator Corey Steel wrote to Lux on Aug. 31 saying Rogers repeatedly used emails, and forwards and courtesy copies to others, when communicating with Probation Administration staff. An informal email exchange is not acceptable, given the gravity of the investigations involving death, sexual abuse or other serious injuries of juveniles, he said.

A formal delivery and receipt system is required to protect information, he said. He also questioned Rogers’ authority to do a systemwide investigation of the judicial branch, and said state law must authorize her access to records.

“As the Office of Probation Administration is part of the judicial branch,” he said, “the (inspector general’s) attempts to investigate and question judges’ orders, or lack of orders, pertaining to specific cases raises grave constitutional concerns.”

The existence of the office of inspector general itself raises separation of powers concerns, Steel added.

Lux told senators that any suggestion the problems were Rogers’ fault was “unconvincing, to say the very least.” Rogers is an accomplished, trained and certified inspector general.

Steel said this week the Probation Administration office will respond to communication requests by Rogers. The process outlined doesn’t discourage or do anything to stop communication.

“The Supreme Court has set a process in place internally so that all communication that comes in to the clerk of the Supreme Court is logged,” Steel said. “That way the Supreme Court knows all communication coming in and all communication going out.”

That’s so there’s no miscommunication, text messages or emails, Steel said. Everything is replied to in writing through the clerk’s office so everything is tracked and documented, like anything else that comes in through the Supreme Court.

“We want to make sure that (the probation staff) are protected, as well, and that they know what questions are being asked and they have the right to counsel there to represent them during that questioning,” he said.

But Lux said giving questions beforehand is not how to conduct investigations.

When the new rules came down, Rogers was in the middle of a systemwide investigation involving three deaths and 15 critical incidents. She had interviewed 15 to 20 probation employees in three districts, and had set interviews for other districts. Everyone knew the subject of the investigation, she said.

When the interviews were cut off, “we were getting cooperation from the local level,” she said. “I don’t know if we stumbled upon something, or we were about to … because no one will talk to me about why.”

Steel said questioning of judicial orders was of utmost concern.

Judges have oversight of every probation case and probation officers can only carry out the orders.

Still, Nebraska law requires all employees of Probation Administration to cooperate with the inspector general, and to be encouraged to fully comply with reasonable requests in the course of investigations. Also, employees must not be subject to asking supervisory approval prior to providing records or information.

To be successful, Rogers’ reports and analysis must be “firmly grounded in facts,” Lux said, which is why full cooperation from both the Department of Health and Human Services and Probation Administration is critical.

There is no reason, he said, that the relationship with Probation Administration should be “fraught with opposition, acrimony, angst or difficulties of any kind.”

The ombudsman’s office is committed to transparency, accountability and legislative oversight as “absolutely essential to good government,” Lux said. Taxpayers should be able to expect positive working relationships among government officials.

If Probation Administration is going to continue this on-again, off-again cooperation with the inspector general, Lux said, he would recommend repealing the law that gives the inspector general oversight of Probation Administration.

“If there’s not a way forward, then I think we’re going to have to pull the plug so that we don’t have to have this issue resolved in court where the answer could well be bad for the whole idea of legislative oversight,” Lux said.

Lincoln Sen. Adam Morfeld has said he will look into submitting a bill.

“I wish the courts would be more transparent,” he said. “I don’t understand why the court system thinks it’s immune to accountability and oversight.”

Lux would anticipate two bills: One to delete the jurisdiction of the inspector general over Probation Administration; another to propose moving juvenile justice services back to the Department of Health and Human Services.

HHS, he said, has a positive and long-established record of working cooperatively with the inspector general.

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