The Monitor himself is violating the Consent Decree?

Since March. Just take a look at paragraph 20(d) of the Consent Decree.

At the very core of Westchester’s obligations was the obligation to develop an “Implementation Plan.” That was because it was understood that permitting a haphazard approach was be inefficient at best and a cover for evasion and non-compliance at worst. So Westchester was required to provide a plan “setting forth with specificity the manner in which the county plans to implement” the provisions of the Consent Decree.

Westchester understood the key role of the implementation plan. Not only would an implementation plan lay bare whether or not the County was proceeding in a serious and good-faith fashion to comply, any representation in the plan that was concrete (any “Westchester shall…” in other words) could be deemed by the Monitor to be a part of the Consent Decree enforceable just like any other aspect of the Consent Decree.

The implementation plan was originally due in early December of 2009, but the deadline was extended to the end of January 2010. That first plan (“IP1”) was simply a retread of the arguments that Westchester had unsuccessfully made during the ADC litigation. Its relentless attempts at evasion and non-compliance were documented in ADC’s Prescription for Failure report.

Paragraph 20 of the Consent Decree required the Monitor to “accept or reject” the proposed plan, but the Monitor refused to say simply and directly that he was “rejecting” the plan, instead choosing a dodge to help the County save face: he was just not accepting the plan yet.

The Consent Decree was very specific: it had a two-strike rule. After the first strike (IP1 submitted at the end of January), the Monitor had to consult with Westchester about the deficiencies in IP1, and Westchester thereafter had 10 business days to submit a revised IP (Consent Decree ¶ 20(c)). Notably, the Consent Decree again stated that IP2 would be submitted for the Monitor’s review and “acceptance or rejection.”

IP2 was submitted in mid-March 2010, and it was a retread of IP1. ADC took the opportunity to submit a draft off a real implementation plan.

The Monitor took almost four months before he acted on IP2.

Pursuant to paragraph 20(d) of the Consent Decree, the Monitor was (and is) under a mandatory obligation when an inadequate follow-up IP was submitted to “specify revisions or additional items that the County shall incorporate.” The Consent Decree could have made this an optional, or permissive item. Indeed, there are a number of items in the Consent Decree where decisions are left up to the discretion of the Monitor.

But here, the Consent Decree stated unequivocally that the Monitor “shall” specify revisions or additional items - in essence, the authority and obligation to set forth his own plan that would be sufficient to “accomplish the objectives and terms set forth” in the Consent Decree.

IP2 was not satisfactory to the Monitor, but he still refused to say straight out that he “rejected” it, and he ignored his obligation to specify revisions and additional items per Consent Decree ¶ 20(d).

Instead, the Monitor gave Westchester another do-over, this one due on August 9th. IP3 wound up containing the same fundamental failings as its predecessors, as set forth in this ADC summary.

The Monitor let more than another two months elapse before issuing his October 25th report. By his own language, the Monitor believed that more work needed to be done on areas of the IP (although he was excruciatingly vague as to which). Nevertheless, he continues to violate the paragraph 20(d) obligation that, as noted above, arose back in March.

Could a Consent Decree have been framed to permit the Monitor to dither in this fashion and give aid and comfort to a unrepentant and non-compliant Westchester? It would have been stupid to do so, but it could have been done.

Of course, that is not what was done, so we have the spectacle of the language of a federal court order being ignored not only by the defendant, but by the person selected to monitor compliance.