How Court Monitors Let Politicians Shirk Their Duties

Laurence D. Cohen
The Connecticut Law Tribune
November 28, 2005

We will be subjected to months of huffing and puffing over "federal court monitor" D. Ray Sirry and the $2 million he apparently managed to earn in the past five years while monitoring up a storm at Connecticut's Department of Children and Families.

Most of the criticism and penetrating analysis will be completely off the point, of course, because that is the very nature of appointing federal court monitors: evasion, escape from responsibility and manufacturing good excuses to hold self-congratulatory press conferences.

As with many federal monitors appointed to oversee this and that, once Sirry was appointed, his mission was already completed. The powers-that-be paid so little attention to his supposed mission (for the most part, making sense of the DCF foster care system) that for a while, he apparently was able to write his own paycheck (literally and figuratively).

Much of what has made people uneasy about the Sirry tenure is not actually the suspicion (unproven, at this point) that he overcharged for limited amounts of work but that the whole shabby process of federal court oversight might come under scrutiny.

Gov. M. Jodi Rell, as is her wont, has expressed considerable concern about Sirry and his salary and whatever he was supposed to be doing, and Rell has called for an audit of all court-appointed monitors marauding in the state.

But the audit won't get to the heart of the matter, whether or not the court-appointed monitors are smoking big cigars and drinking expensive champagne. It's the process that stinks, quite aside from levels of compensation for the ringmaster of the circus.

The monitors' compensation is blood money from society, to take over unpleasant chores that are embarrassing the politicians. If they are overpaid for their work, it is because the politicians are grateful that someone has offered up a public relations facade behind which to hide such unlovely pockets of state government as child welfare and protection.

As with Sirry, most of these folks in Connecticut, and across the country, are the products of sham litigation that results in "settlements" that conjure up court monitors to reassure the public that all will be well in the recesses of government that don't work, no matter how much money is lavished on them.

Much of this lawsuit-crazy social engineering is done with a wink and a nod; these are the ultimate "friendly" lawsuits designed to extricate politicians from the chore of having to raise money for unpopular programs.

Sirry was a product of a blockbuster make-believe lawsuit, Juan F. v. O'Neill, which basically begged the courts to pretend that Connecticut's child protection monstrosity was worse than dysfunctional child protection bureaucracies in other places that managed to function without court oversight. The dance of the court monitors had begun.

The politicians and the press often conspire to create the illusion that the states are fighting back against claims that they are incompetent to perform many functions of government. But there is no real dispute. Both sides have signed disarmament pacts.

These cases are often brought lovingly to the bench by both "sides," under the pretense that the disagreement among the parties represents a legitimate legal dispute rather than a wink-wink, nod-nod conspiracy among pretend plaintiffs and pretend defendants.

In 2003, Yale University Press published a pretty good book on the general subject: "Democracy by Decree: What Happens When Courts Run Government."

Well, in Connecticut at least, we may know the answer first-hand: The monitors are overpaid.

But the compensation is a side issue. The real -- which is to say the behind-the-scenes -- plaintiffs in these cases tend not to be actual victims but an army of social workers and other social safety net professionals who expect the court to rain money down on them, in order to achieve a perfection that will never come.

Everybody wins: The helping professions extract extra money from taxpayers -- and the politicians can shrug and blame it on the judges.

Whenever the state attempts to lay off a butcher, baker, candlestick maker or social worker at DCF, an army of lawyers and "advocates" marches into court, waving the consent decree and demanding justice.

That's how the game is played. And nobody much cares about whether the court monitors overcharge a bit. They are bit players in this theater of the absurd.

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