Monitor Accountability Act

Floor Speech

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Mr. BIGGS of Arizona. Mr. Speaker, pursuant to House Resolution 1275, I call up the bill (H.R. 8365) to provide for conditions on the appointment of monitors by courts, and for other purposes, and ask for its immediate consideration in the House.

The Clerk read the title of the bill.

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Mr. BIGGS of Arizona. 8365.

Mr. Speaker, H.R. 8365 is the result of a field hearing that the Subcommittee on Crime and Federal Government Surveillance held in February in Phoenix, Arizona.

While that hearing focused on the special monitor in Maricopa County, it has implications for residents across the Nation who also find their law enforcement agencies held hostage by a special monitor or consent decree.

Since December 2013, the Maricopa County Sheriff's Office, MCSO, has been under a Federal judicial oversight following a DOJ intervention into the 2008 case of Ortega Melendres v. Arpaio.

In 2007, Latino motorists and passengers, aided by the ACLU, filed a lawsuit against then-Maricopa County Sheriff Joe Arpaio. The lawsuit alleged that MCSO violated the Fourth and 14th Amendments by engaging in a systematic practice of unconstitutional racial profiling, including stopping, detaining, and arresting Latino individuals during traffic stops and patrol operations based on race or perceived immigration status.

Following a bench trial in December 2011, U.S. District Judge Murray Snow ruled in 2013 that MCSO had violated constitutional protections and imposed permanent injunctions that required MCSO to implement sweeping reforms to policies, training, operations, and internal investigations.

Unlike a consent decree, which is a negotiated settlement agreed to by the parties, the court imposed these injunctions after findings of liability.

DOJ consent decrees are typically entered into voluntarily by State or local governments to resolve a civil rights investigation without a trial, even though they can result in similarly extensive Federal oversight and court-appointed monitoring.

In January 2014, Judge Snow appointed Federal court monitor Robert Warshaw to oversee MCSO's compliance with the court's permanent injunctions, including reforms intended to address racial discrimination during traffic stops and deficiencies in policy development and oversight.

Following that, in July 2015, the court mandated additional remedial measures, including further policy revisions to further strengthen oversight mechanisms.

The Federal court monitoring was intended to last only until MCSO achieved full and effective compliance with the court's injunctions, yet oversight has continued for more than a decade without a fixed end date.

This extended judicial supervision has placed significant financial burdens on Maricopa County taxpayers, with costs reportedly reaching nearly $350 million.

Most of these expenses include the administrative efforts needed to demonstrate compliance with court orders. For example, despite remote work and meetings in 2021, the county was responsible for funding a 3,200-square-foot office suite for the monitor, which cost taxpayers $97,000 for a year.

This persistent Federal judicial intervention has created operational challenges for MCSO, including difficulties in recruiting and retaining qualified deputies. All of these things, by the way, are consistent with monitoring that is going on in most of the country.

The increased administrative workload and ongoing scrutiny have led to a decline in staff retention and discouraged potential recruits from pursuing careers within the department, which is ultimately impacting the office's ability to serve and protect the community, one of the largest counties in the country, with over 5\1/2\ million people.

The Federal court monitor typically issues quarterly reports tracking MCSO's compliance with the court-ordered reforms and provides the court with independent assessments of policy implementation. Over the course of more than 40 reports, MCSO's compliance rate increased from below 30 percent in 2014 to over 94 percent by 2025, which meets the standard that requires the agency to demonstrate adherence in more than 94 percent of instances under review.

According to Warshaw, the MCSO's compliance framework has become self-sustaining and institutionalized. Warshaw also labeled the MCSO's compliance with policies, training, and supervisory review as solid, noting that the compliance measures were fully built into the agency's daily work, showing full, independent accountability.

Earlier this year, the Department of Justice, which originally intervened in this case in 2011, filed a brief supporting Maricopa County's request to end Federal oversight, noting that the litigation has been successful in reforming the agency.

By the way, we are on the fourth elected sheriff since this original complaint was filed.

The Department argued that the extensive reforms imposed through the court-appointed monitoring regime have been successful in correcting the unconstitutional practices identified in the original case, which you will recall was the racial profiling of Latino motorists.

DOJ cited multiple recent monitor reports, which document consistently high compliance rates, institutionalized policy adherence, effective training programs, and durable accountability mechanisms. The Department indicated that continued Federal supervision is no longer necessary to ensure constitutional policing, supporting termination of the court-appointed monitoring regime.

Maricopa County is not the only jurisdiction monitored by Robert Warshaw and his associates. Warshaw has been accused of taking exorbitant payments without producing results in monitoring law enforcement agencies in New York, California, Michigan, and Louisiana.

For example, Warshaw faced criticism for the duration, high cost, and evolving compliance benchmarks. In other words, he was moving the goalpost of Federal oversight in Oakland, California. Despite reportedly spending little time in Oakland, Warshaw is currently paid more than $1 million annually by the city, a structure that incentivizes prolonging the monitorship, just like we see in Maricopa County.

Compared to monitors who operate under narrowly defined mandates and fixed timelines, Warshaw's role continuously blurs the line between oversight and management. Questions about judgment incentives also follow Warshaw from Niagara Falls, New York, for example.

Together, episodes in New York and various jurisdictions that have had Warshaw, the critics have cited this systemic pattern in which Warshaw's work unfolds with limited transparency. In fact, when he bills Maricopa County, he won't tell them what he did, and the court won't make him. There were minimal cost controls and little external checks on the expansion or duration of his authority.

While I agreed with very little that former AG Merrick Garland did while in office, he actually had pretty good ideas on how to deal with these issues involving monitors.

In April 2021, he asked then-Associate Attorney General Vanita Gupta to conduct a 4-month review of how the Justice Department appoints and oversees Federal monitors in settlement agreements and consent decrees. In August 2021, Associate AG Gupta responded with 19 recommendations stemming from five core principles. The principles included minimizing costs and conflicts of interest, ensuring monitors' accountability, compliance assessment, community engagement, and efficient reform.

A notable reform included in the memorandum was imposing term limits for Federal monitors. The significance of these recommendations sets clear expectations for time-limited oversight, ensuring that Federal monitorships are not indefinite.

Mr. Speaker, I want everyone to realize that this applies to monitorships not just in Maricopa County; not just in Niagara Falls, New York; not just in Oakland, California; or in Baltimore, Maryland, where Warshaw was a monitor, or anyplace involving Warshaw. It was so spread out, and the concern was so great, that former Attorney General Merrick Garland asked for the study because even he understood that the monitorships had been abused.

I appreciate the gentleman's willingness to work with us. That is why we had a field hearing. That is why Democrats were extended the invitation to come; give us the name of someone you want to testify.

Do you know how many people across the aisle came to that hearing? Zero, zip, nada came. Democrats didn't come. They were uninterested. They didn't want to hear from Merrick Garland. They didn't want to come.

So the Democrats said, oh, well, okay, we are not going to do that. And then they are going to stand up and say some rather wild things about that this only applies to Maricopa County and that the monitorship ends at the end of 5 years. That is not true. That is not what this bill does.

The bill says the monitor, the current monitor, is done after 5 years. And why is that? It is because regardless, not just this monitor but how about the monitor that has been in Oakland, California, for 20- some-odd years or other monitors around the country? What happens is, as Merrick Garland said, and as Associate Attorney General Gupta said, they build up incentives. All of a sudden, they had incentives because it is a monetary incentive, and they need to avoid the conflict of interest.

That was the first principle--that was within the first principle that Merrick Garland put together, avoid the conflict of interest.

Guess what. If the Court were to say we are going to continue the monitorship, you get a new monitor. And, quite frankly, the AG also said these things should be simple. These things should be simple. They should be focused. I don't think that someone who is capable of becoming a court monitor is not going to be able to get up to speed pretty doggone quickly. That is the argument that they are making over there.

Let's see who supports this: The National Association of Police, Arizona Sheriffs' Association, Major County Sheriffs of America, Phoenix Law Enforcement Association, and also the California police associations. They all support this because all their departments have been taken over.

How about this one? I think this is a kick in the pants. They basically roll the monitor. This is the fourth sheriff. The DOJ has said they are in substantial compliance, and guess what, this monitor has taken to micromanaging even the uniforms, the stripes for officers. Oh, no, you can't put them up here. You want them down on the front part of the sleeve. That is what the Maricopa County monitor has done.

That is not unique to Maricopa County. The monitors get in, and they micromanage even the most absurd things that have nothing to do with the issue that brought this forward, which was this: the racial profiling in traffic stops. The monitor himself has said in his reports they are in substantial compliance. There is no statistical significance in any difference between any racial demographic in Arizona.

The monitorship has a monetary incentive, and that is what you are seeing. That is why you see these monitorships run amuck around the country.

Merrick Garland's memo says this: ``Principle: Monitorships should be designed to minimize the cost to jurisdictions''--the one in Maricopa County is $350 million; the one in Oakland is who knows how many millions of dollars--``and to avoid any appearance of a conflict of interest.''

It goes on to be a little bit more specific: ``Monitorships must nonetheless be designed and administered with awareness that every dollar spent on a monitorship is a dollar that cannot be spent on other policy priorities.''

In other words, don't divert the taxpayers' money so they can't fulfill all of their responsibilities.

Here is another quote: ``Monitorships should be designed to avoid even the appearance that a monitor is primarily motivated by profit.''

We have a monitor in Maricopa County, for instance, who gets $3 million a year on average over the term of his monitorship and who seems to be moving the goalposts, just like he did in Oakland. These seem to be saying: Hey, maybe he does have a profit motivation.

Specifically, this is what they recommend: Cap the monitor fees, an annual cap on monitor fees; encourage use of pro bono time, reduced rates, and nonprofits; explore alternative fee arrangements; and restrict lead monitor participation in multiple monitorships.

We have tried to get at all those things in the current bill.

They go on to say this: ``Future consent decrees should limit the ability of the individual who serves as the lead monitor to serve on more than one monitoring team at a time. . . . But the person serving as the lead monitor should be solely committed to the jurisdiction they are serving and should not be simultaneously supporting multiple monitorships at the same time.''

The gentleman was just arguing essentially for monitors, which continues to hamstring police agencies around the country. I guess he wasn't here when I started reading off how agencies around the country support this bill because they are impacted negatively by rogue monitors.

I will just go back to my colleague saying, hey, we didn't--nobody came. Nobody went to Phoenix because we thought this was an unserious endeavor.

They could have come. They could have tried to make it serious by bringing their witness, the witness he said he would like to have come in now. He could have brought that witness in then. He chose not to.

I think maybe the unseriousness is on your side not taking this issue serious because it does impact the entire country.

We know it does. Because why? Because former Attorney General Merrick Garland said: Hey, I am so concerned about it, I am going to commission somebody to spend several months to research this and give us some recommendations.

My bill is attempting to implement those recommendations, and I encourage their support of it.

Mr. Speaker, this bill actually would help save money by holding monitors responsible, making sure that they are responsible. That is important.

When they start talking about $1 billion, remember that just compliance costs and the cost of this particular monitor that they are very focused on has cost the taxpayers there over $350 million, over one-third of a billion dollars.

The monitor in Baltimore right now submitted their bill recently for $1.5 million. That is just a fee, mind you, Mr. Speaker, of the monitor, $1.5 million. That doesn't include whatever compliance costs there may be.

The second principle that came out of Attorney General Merrick Garland's position was this: When consent decrees involve State and local entities, monitors hold the position of public trust, not only as agents of the court, but as drivers of significant change of public institutions that are central to the communities that they serve, and, thus, they must be structured to ensure that monitors are accountable-- are accountable--for their work.

That is what my bill does. It creates accountability because there is no accountability there.

If it was all resting in the judge, Merrick Garland could have just said: We will just leave it up to the judge, because that is what the Democrats want.

However, they say you must have an opportunity for public input.

This is interesting: Consent decrees should include term limits for monitors that could be renewed, but they should have term limits.

Those term limits need to be reviewed after 2 to 3 years to determine whether they are performing properly, are cost-effective, and are providing technical assistance. That is what the memo said, and we are trying to get that codified.

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Mr. BIGGS of Arizona. Mr. Speaker, may I inquire as to how much time I have remaining.

Mr. Speaker, the gentleman thinks this is a silly effort, and he doesn't know if Merrick Garland or Associate Attorney General Gupta supports it. Did he care enough to call them? Did he ask? One wonders. He is saying, oh, they didn't call me. That is what he said, that they didn't call him.

Here is the deal. In the pleadings in the case, the record shows that MCSO has implemented the key reforms required by the court orders, including policies, training, supervision, data collection analysis, and accountability systems related to bias-free policing and traffic enforcement. That is in the pleadings in the court.

In that context, MCSO has achieved substantial compliance with the court's orders, which, by the way, is what Associate Attorney General Gupta said is the measure for ending a monitorship, substantial compliance.

Let's talk about the bill. The reality is, this is not just for Maricopa County. There are monitors throughout this country. Let's just go through the bill a little bit. They didn't want to do that because they want to talk about all kinds of things tangential to this, because when you read the bill, you realize it is not about Maricopa County. It is about monitors. It is about monitors and making sure that they have guideposts and guidelines.

Fees: They ``may not assess a fee in excess of such maximum rates as the administrator may establish.'' There is nothing about Maricopa County there. That is the director of the Administrative Office of the United States Courts. They ``shall be authorized to employ the use of pro bono time or reduced rates.''

``Such person may not be appointed to more than one such monitorship at a time,'' consistent with what was in the Garland memo, or ``appointed for a term greater than 5 years.'' They can't be. They also can't be ``reappointed after the expiration of such term pursuant to the same court order,'' if it is the same court order.

A subsequent monitor ``who is appointed to a monitorship after the expiration of the term of a monitor who served pursuant to the same court order may not be employed by the same employer as the previous monitor.'' Why? Because Merrick Garland said you can't have a conflict of interest. You also cannot basically have someone without a term limit because that puts somebody there with a financial incentive to keep the monitorship going, regardless of compliance.

Termination: ``In the case that a court, a party, or a monitor seeks to revise a monitorship imposed by a court order, the court shall conduct a hearing.''

``The court may only revise a requirement of a monitorship with respect to which the subject of the monitorship has not attained substantial and sustained compliance.'' I just read to you that they have. The monitor found that in Arizona. This applies nationwide.

``On the date that is 6 years after the court order,'' the case gets transferred from one judge to another.

Accounting: ``On an annual basis, a monitor shall submit to the Court imposing the monitorship an accounting,'' including ``information on the services provided.'' Why don't they want that? I wonder why they don't want that amongst all the monitors around the country? Why don't you want them to provide an accounting?

Right now, we have places in this country where the monitor just simply gives a bill to the county and says: For services rendered, $200,000 this month. It does become retroactive.

``It is the sense of Congress that monitoring is a public service and monitorships should be structured to encourage the use of pro bono time or reduced rates.''

That is the simplicity of this bill. It gets at the heart of the nub of the Garland memo. This doesn't focus on one monitor. It doesn't focus on one location. It says every monitorship will be subject to this.

It doesn't say monitorships are bad or unconstitutional. It says they have to be performing without conflict of interest and without incentives to make sure that they keep going because they want compliance. We need them to ensure compliance, not to make sure that they are lining their own pockets, that it doesn't become a grift, that you don't get $30 million over 10 years coming in as your fee when you are also monitoring multiple jurisdictions. That is what is at the heart of the Gupta memo, and that is what is at the heart of this bill.

Contrary to what one of my colleagues says, that it is not unusual not to have a bill with a Senator sponsor, not every bill has a Senator sponsor. It is not required.

Mr. Speaker, I would suggest to you that this bill gets to the very heart of making sure that a monitorship does not become abusive, overbearing, and negate what they are supposed to be doing, which is to make sure that there is compliance with a court order, to make sure we have a constitutional performance.

That is what is said in Maricopa County, but it applies nationwide. Nothing in the bill limits this to one county. It applies nationwide.

Mr. Speaker, I encourage everyone to support this bill, and I yield back the balance of my time.

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