Constitution

County Probation System May Be Unconstitutional

While the GUARDIAN has been concerned with allegations of fee overcharges and other irregularities in the Ada County Misdemeanor Probation system, we question why the county is even in the business of offering probation services–private or public. We have been advised of constitutional issues which should stop the practice in its tracks.

In a nutshell it would appear the Idaho Legislature has passed several laws giving the courts and the counties authority to conduct adult probation services. HOWEVER, the legislature has no authority to transfer power constitutionally held by the Executive branch of state government to another level (counties and judicial). They can’t grant that which they do not possess.

Article X STATES:
SECTION 5.STATE PRISONS — CONTROL OVER. The state legislature shall establish a nonpartisan board to be known as the state board of correction, and to consist of three members appointed by the governor, one member for two years, one member for four years, and one member for six years. After the appointment of the first board the term of each member appointed shall be six years. This board shall have the control, direction and management of the penitentiaries of the state, their employees and properties, and of adult probation and parole, with such compensation, powers, and duties as may be prescribed by law.

The constitution makes no distinction between misdemeanor and felony probation.

Article II STATES:
SECTION 1.DEPARTMENTS OF GOVERNMENT. The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.

For many years the courts and counties have simply claimed authority for probation services and obviously gotten the legislature to offer some semblance of legitimacy to the practice. The Idaho office of Public Defender appellate services gets kudos from the GUARDIAN for some very basic and well reasoned legal research–the Constitution trumps all the subsequent laws.

Tuesday’s open business meeting of the Ada County Commishes should be interesting. On the agenda is an item to approve the probation contract with Nancy Cladis for another 12 months. Given the complaints about the private for-profit Ada County Misdemeanor Court Services, a class action law suite, and now the revelation that the whole probation scheme could be illegal, one would think the new contract will not be approved.

UPDATE TUESDAY–
The Ada Commishes tabled the motion to approve the contract, citing the constitutional issues above. They plan to seek additional legal advice and have set it for the October 18 meeting.

Comments & Discussion

Comments are closed for this post.

  1. In Idaho Politics anything can and will happen regardless of anything like a law or ordinance prohibiting any given actions taken by elected officials.

  2. More fine reporting and research by The Guardian. Thank you for keeping the pressure on and this in the spotlight.

    At this point, the more pressure the better. This is one problem that I can’t see them sweeping under the rug.

  3. ex-probationer
    Oct 10, 2011, 8:48 pm

    if this is true let the law suites begin… I my self have 2 years of civil rights violations and 70 some days of “discreationary time” in jail that someone owes me for..

  4. Some years ago, after many many years of Cladis having the contract, demand was made by members of the public to take this contract public for bid. The county commissioners did so but very begrudgingly. And afterward they awarded the contract to Cladis anyway as the chosen one. It is outrageous that we now learn the entire process is illegal and for years this woman has been making private profit off county business.

  5. chicago sam
    Oct 11, 2011, 7:24 am

    Time to show up at the commissioner vote–Can you give a time and place other than tuesday?

    EDITOR NOTE– 9 a.m. Tuesday at courthouse.

  6. Lets not forget that this affects more than just Ada County.

  7. Thank you Guardian for all you have done. I am an ex employee of Nancy’s. Nancy has gotten away with a lot of things in the past years,too much to even mention on this blog. To let you know the PO’s there are doing their jobs they have no choice. I only hope and pray this goes county. I would love to get my job back. Some of us really do care about our clients. I am one of them.
    Thanks again
    Tina

  8. ex probationer
    Oct 11, 2011, 12:44 pm

    has any one been reading the posts here…. if the comment about it being unconstitutional is right…its not going to the county… its going to the dept of corrections…. wow and they say the “perps” are the dumb ones

  9. Good job Guardian. It’s hard to swollow that she still has 12 months in that position. Wouldn’t it be sweet if she’s placed on Felony Probation.
    Where did this Profit go? Am certain the probationers won’t gain it back nor have their records adjusted.
    Tina, there are many PO’s out there attempting to make a difference but there is always a means to capitalize on this Idaho system. CCA/ICC is an excellent example.

  10. Rod in SE Boise
    Oct 11, 2011, 3:14 pm

    Constitutional or not, it is just plain wrong to farm out legitimate government functions to for-profits corporations. Prisons and parole are government functions and should be managed and staffed by government employees.

  11. This whole affair is another example of the corrupt, so called “war on drugs”. So many corporations are invested in the for profit incarceration business, we will never “win” the so called war on drugs. The politicians are in the pockets of these pirates big time, including dear leader, “Butch” Otter.

    I just hope this extends to private for profit prisons. Totally unconstitutional. Only the government can incarcerate people.

    Time to incarcerate corporations, since they are people now.

  12. steve lewis
    Oct 11, 2011, 7:31 pm

    The thing to remember is, even though its doesn’t differentiate in the statute about felony vs misdemeanor, the Board of Correction is only over prisons, employees, property etc, which only house felons. Misdemeanor offenders that are housed for jail terms go to county jails. I think this will have a great bearing on this subject, as to why the county sheriff is responsible for misdemeanor offenders in their jurisdiction. As far as contracting the supervision out, I think that will be the big question.

  13. Educated Woman
    Oct 12, 2011, 1:23 am

    This affects thousands in Ada County. I hope everyone with information about this situation will have the courage to share what they know with the Guardian and the Statesman like Tina Baird did here. I hope she finds a job doing this work in an honest way.

    The way Ms.Cladis has treated offenders is terrible and unbelievable. How could she sleep at night? Did she really believe she was helping people using financial abuse tactics and fear?

    I hope she is investigated and held accountable for every dollar she wrongly took from those on probation.

    It is only fair that every person on probation that has been “tapped out” financially get a refund/ settlement check.

  14. If, in fact, the county probation system really is unconstitutional, then this raises questions about basic competence, doesn’t it?

    It seems incredible that so many elected officials — many with degrees in law — could cobble together an unconstitutional system. Of course, we don’t really know for certain if the system is truly unconstitutional unless we get some formal determination by a court, right?

    It’s interesting that this issue is a front page story in the Statesman today.

    It really does raise interesting questions about the status quo and how local bureaucracies — both governmental and corporate — perpetuate practices not because any analysis has been applied, but because that’s the way it has been done in the past.

  15. Jerry ~ You are correct when you say that we don’t really know for certain if the system is truly unconstitutional unless we get some formal determination by a court. Although a District Court judge might weigh in along the way, I believe that the final determination of the constitutionality of any law rests with the Idaho Supreme Court.

    Interestingly, in the 2011 Idaho Supreme Court case of Allied Bail Bonds v. Kootenai County, the Court declined to address this very issue.

    From the July 8, 2011 Idaho Supreme Court decision:

    “At oral argument, Allied expressly waived its argument that I.C. §§ 19-3947 and 31-878, which vest power to manage adult misdemeanor probation in county commissioners, are unconstitutional because article X, section 5 of the Idaho Constitution vests all power to manage matters of adult probation and parole solely in the State Board of Correction. We therefore decline to address the issue.”

    My best guess of what will happen from here on a statewide basis is that if the legal folks at the state level agree with the assertion that the law delegating authority and responsibility for the provision of adult misdemeanor probation services to county commissioners is unconstitutional, the law will be repealed. I suspect that, ultimately, the State Department of Corrections will end up contracting with the counties to provide misdemeanor probation services. Alternately, the Idaho Legislature could sponsor a constitutional amendment to “correct” the problem.

    In any event, it is my hope that the allegations of wrongdoing by Ada County Misdemeanor Probation Services, Inc., the county’s private contractor, do not get swept under the carpet and forgotten. An investigation into all of the claims that have been made should take place sooner, rather than later.

  16. Tina Baird, I had the brief opportunity to meet with you before you left and I’m so glad we did! Because of you, my files were looked over and adjusted because another pair of eyes got to see what was going on. You were wonderful to meet with in lieu of my regular probation officer. I could see the genuine compassion you had to help out the clients instead of keeping us under pressure. I’m glad you got out of that office though. When I was there last, it was chaos! The office seemed to be making a lot of changes and everyone seemed to be on their tip-toes. The paranoia struck and they’re watching their backs now.

    I don’t know if I can post a link here, but KTVB is now covering this story as well. Its about time! (If the link works, you can click on my name and it should bring you to it.)

    Thank you Guardian for keeping up with this. Since May, this has been stirring up the hornet’s nest and I’m glad something’s being done for all of us stuck in ACMPS.

  17. Sharon
    You say your best guess it that the law will be repealed if it is won’t that leave counties and the state open to a plethora of civil rights laws suits?

  18. Thanks for the comments.

    The constitutional question is quite interesting and I can’t help but wonder about the history of all of this.

    The Idaho capitol is full of lawyers. They must’ve had some rationale — some basis — for establishing the current practice.

    On the other hand, how many times have we watched local, regional, and national news stories where lawyers have to hire other lawyers to defend themselves? Nothing surprises me these days.

    But this really is incredible. And as a practical matter, one can probably guess that the Idaho Department of Correction leadership/staff might not be thrilled by the prospect of having to assume additional responsibility.

    It will be interesting to see how this evolves. It also raises fundamental questions about how these types of services should be funded. Amazing stuff.

  19. Rick ~ It’s speculation on my part as I am not an attorney but my best guess is that the law will be repealed and the Idaho Department of Corrections will contract with the counties to provide misdemeanor probation services, which would effectively maintain the status quo.

    There is a precedent for the state to contract with the counties for corrections-related services. The state has contracted with some of the counties to take “overflow” inmates, although I think they were trying to end the practice since it was costing the state money.

    I have no idea what will happen with regard to possible civil rights cases although I would think it would be hard for a judge to rule against counties that provided a service the state law told them to provide when they were doing so in good faith. Some of the claims against the privately held ACMPS might not have such a rosy outcome, if it can be proven that people were kept in the program longer than the judges had ordered, solely for the purpose of enhancing the company’s bottom line.

  20. This is a perfect exampole of outsourcing government to the private sector ie: running government like a business. Businesses are in business to make a profit. Why would ACMPS be interested in releasing the profit centers if they were allowed to keep them in the system and milk them for more money? Sickening and a pathetic footnote to greed based capitalisim whoring as govenment wrapped in a flag. Could have easily been Halliburton or Blackwater contractors in our never ending wars.

  21. Sharon

    I understand your opinion and I to am not a lawyer. I dont personally see how… The I did what the law told me to do defense will stand up…IE following an unconstitutional, illegal law. If memory serves me correctly that defence didn’t fly very far for Lt Callie in Vietnam. Following an illegal law does not make the action taken under cover of that law legal.In my opinion.

  22. Law Abiding Citizen
    Oct 12, 2011, 5:45 pm

    Please someone correct me if I’m wrong, are there THREE, yes THREE Ada County Commissioners right?? And only 1 see’s something wrong with all these allegations which have been voiced for months, if not years, about the Misdemeanor Probation company (Nancy Cladis). I’m very troubled and quite frankly a little PO’d that it seems to me as if commissioners Vern and Rick do not care about what probationer’s have to say. Do you think that these people do not vote and had a hand in getting you where you are today. Committing a misdemeanor does NOT make you less of a person nor does it mean that their voice doesn’t count. All these allegations and still no investigation?? You both were going to renew her contract without giving ANY credence to what these people have said. And the ONLY reason you “tabled” it was because of the constitutionality issue. Are you kidding me?

    I can clearly read the writing on the wall now…..you want to just wait and see if you can boot her out on the constitutionally issue and not have to deal with all the complaints that have come your way and get your hands dirty. And what if that does not happen? Maybe then finally look into an investigation or just sweep it under the rug again? Listen to the people that gladly gave you their trust and support and give them a little respect. There seems to be plenty of allegations that an investigation is warranted NOW and your sit on your hands approach means that Ms. Cladis can possibly victimize her probationer’s and staff even more then she’s apparently already done (which we don’t even know if it has occured because you REFUSE to investigate).

    Sharon I would like to give you a big thanks for being big enough to come out and take a stand and not hem-haw around the issues.

    For those of you who may need to know I have never committed a crime and don’t know anyone whose on probation. I’ve been a HUGE proponent of law enforcement my entire life and I refuse to believe that ALL these allegations are unfounded. By not doing anything to fix this makes all law enforcement agencies look bad, I equate it to having a bad seed on the force that needs to go.

  23. Today I went in to see my PO and was patiently waiting and tlaking and laughing with others when I was approached by a PO or Staff and told to “shut up” or keep it quiet. I felt so uncomfortable sitting there afterwards that now I dont even want to go back but what do yo do.

  24. its happen all over noty just misminer all over they are more crooked than the crockes

  25. Shocked – you record these things. I have been hearing horror stories from clients for years. Nearly everybody has a cell phone now and most can record audio snippets.

    This problem has been around for years but most of the people on misdemeanor probation are not used to standing up for themselves against the government, or lack resources, like a cell phone, to do much. And the compliant people on probation are usually too scared of a probation violation.

  26. I’ve worked with Ms. Baird a bit and want to personally thank her for what she is undertaking with regard to ACMPS. I’ve seen the affidavit in the case that Wallace is handling and it is beautiful.

    Last time I talked to you was about the client who got a PV for missing PO meetings, because she was in jail serving her time for the case she was on probation for. I got her ORd from her $15,000 bail partly on the basis of talking to you in court. Thank you.

  27. If the unconstitutionality case rests upon the language cited above, it’s pretty weak. The constitution directs the legislature to establish a board of correction, which “…shall have the control, direction and management … of adult probation and parole, with such compensation, powers, and duties as may be prescribed by law.”

    In other words, the legislature “by law” prescribes the powers and duties by which the board exercises the control, direction and management of adult probation and parole.

  28. If this is ruled unconstitutional, the only way to “maintain the status-quo” would be via a change to the State’s Constitution, not a repeal of the law.

    Also, one important thing to note. I met a few people along the way who were on felony probation. It is NOTHING like misdemeanor probation. They don’t report, UA, and a lot of the other pressure things that misdemeanants are required to do by ACMPS. You would think it would be opposite with felonies being more serious.

    What’s the huge pink elephant in the room? Felony probation is handled by Corrections. Misdemeanor is handled by a for-profit company. Pretty clear what’s going on.

  29. I am still very concerned with the fact an investigation hasn’t been done. Four of us met with 2 of the 3 commisioners with EVIDENCE of Nancy’s corruption and mistreatment of her probationers AND her employees. It was enough evidence to have Rick Y call her the next day to let her know they would NOT renew her contract next year, but why not enough to warrant an investigation. In Nancy’s email she states that we are nothing but disgruntled employees with ACCUSATIONS not so we had cold hard PROOF. I know Nancy. For whatever reason, she thinks she’s above the law. She thinks she will get away with the UAs and from my understanding she believes that the “unconstitutionality” only applies to felony probation. Rick and Vern have all the proof in front of them.
    Thanks Publica for the nice words I do know who you are. Also, thank you Probationer for your kind words, all probationers should be treated with dignity and respect.

  30. Educated Woman
    Oct 13, 2011, 12:15 pm

    Does Nancy Cladis own the Caldwell Cladis Bail Bonds?

  31. well Nancy SOLD the bailsbond business to her sister Kathy

  32. No Nancy did not sell the bail bonds to her sister Kathy. Kathy started up her bail bond company on her own.

  33. probationer2
    Oct 15, 2011, 4:19 pm

    Tina, I have also had the pleasure of working for you briefly since my PO was let go and you seemed to be very understanding and helpful when it came to your clients. Thank you. I do want to mention after meeting with you that month I went in the next month expecting to meet with you and I sat there for about 30 minutes waiting to see you and I asked what was going on and told you were gone and they had no one for me. they then told me to wait so they could “squeeze” me in with someone else. I met with someone who had no clue about my situation and he was a total(fill in as you please) He did not care wether I was late to work. BUT Im expected To pay my MONTHLY fee. I am also expected to obtain a full time job. Well How can someone who wants to comply, keep their job if they can’t even make it to work because you have People like Nancy, Her employees not give to damn about it. it’s a shame it has to get to this point. I am disgusted at the fact that we vote for our commissioners and ONLY ONE is standing up… You are lucky that your in the position that you are in now. Why not listen to the people who are actually going through Nancy and dealing with her “crap”. Some of us have made mistakes and are willing to correct them, but what we are given by nancy aren’t always attainable goals! – I am so disgusted!! Oh I hope I don’t get a probation Violation for this one!!

  34. probationer2
    Oct 15, 2011, 4:26 pm

    Tina, you mentioned that Nancy thinks she can get away with UA’s… OH she is taking full advantage of it right now.. Ever since this whole ordeal has gone public . The amount of “colors” being called is Amazing!! She’s got to make sure she is still making her money and THe drug testing place is making theirs!! – unbelievable!

  35. Just to clarify, it doesn’t appear Nancy makes money off the UAs unless there are kickbacks or something from the labs. According to Idaho Secretary of State info, she doesn’t own Global, which is the UA line most everybody has to call. It’s possible she might have some other interest.

    And your post actually just gave me a great idea of something I’ll pursue in the next couple weeks regarding UAs.

    If you are feeling brave, you might email me at lexpublica@gmail.com. I may be able to help with any probation issues you may have. At a minimum, I’d like to hear what horror stories you might have with probation.

  36. I’m here to dispell the MYTH that Nancy does not make money off UA’s. I am now called into the probation office to do my drug tests. I’m charged $7.50 per test (this is however $2.50 cheaper then Global). I have to wait around until someone can find the time to UA me. And when they do they don’t seem near as professional or trained as the people at Global are. So even though it’s cheaper it’s scary to think that maybe they have not been trained.
    I took it upon myself to look up the cost of drug testing supplies and you can get the cups they use with the actual test built into them for anywhere from $1.50 to $2.50. They are cheaper if you can buy them in bulk which I’m sure they probably do. So for anyone at that office to say they are not making money on them they are clearly lying.
    As far as the allegations of kick backs from Global I don’t think we will ever know that truth to that one.

  37. James:

    If you would e-mail me at lexpublica@gmail.com I would like to speak with you. In my e-mail I will tell you how to verify who I am and that I am not with probation. You are the first I’ve heard of regarding UAs at the probation office.

    Kickbacks – Gordon might be able open up the books on other companies now, or perhaps depose employees of Global. I’ve heard that their lab up north (CdA?) wennt through a personnel shakeup – quite possible the lab down here has issues also.

    If you don’t want to contact me then could you at least tell me if this is being done pursuant to your color? In addition to your color? Was there some event that triggered closer examination.

    Those UA cup things aren’t always accurate. I had two clients once test hot for PCP. Who does PCP nowadays? Confirmation testing came back negative.

    For Global, I believe they keep hot samples for 90 days for possible additional testing. The problem is that the client isn’t always told that a UA was hot. Sometimes they let violations build up.

  38. Andrew RR- current ada county probationer
    Oct 18, 2011, 12:37 am

    I’ve Probably paid 2000 plus dollars on fines/fees and classes since I’ve been on probation. I’ve been on probation for 10 months now, and I was just violated for failing a UA That I should not have failed

  39. prttt prttt
    Oct 18, 2011, 3:29 pm

    why dont someone check out the ua place and see if that to is owned by ada county misameanor

  40. PRTTT:

    It isn’t. Global has two recordings with the Sec of State:

    http://www.accessidaho.org/public/sos/corp/C174207.html

    The second one is just a business name.

    Global is incorporated under the laws of California, entity C2632859.

    It would be possible for Cladis to be a shareholder in Global and we wouldn’t know. Sounds like the new contract may prohibit that.

  41. Just an FYI Nancy has started her own UA company out of ACMPS.

    EDITOR NOTE–We are aware of the filing at the Secretary of State, but so far no proof that she is operating the company in connection with ACMPS. Do you know differently?

  42. User named JAMES posted in this thread that he had to UA at probation, not Global.

  43. Andrew RR- current ada county probationer
    Oct 19, 2011, 12:13 am

    Why is Global drug testing changing the name of the company?

  44. She has started small but has the office set up for testing. In her contract she is going to run her own testing facility. We went over all of this at our last staff meeting. As for SCRAM she is making the money there too, when I left the office (1 month ago) she was charging 7 dollars a day with the minimum of 60 days the probationer must pay half up front or face a probation violation.

  45. Andrew RR- current ada county probationer
    Oct 19, 2011, 2:04 pm

    Tina you were my probation officer for more than half of my probation this year. I was placed on SCRAM and I had to pay 400$ a month. If I Didn’t have the payments for SCRAM monthly they would have taken it off and violated me. They re-use all the SCRAM bracelets, and the computer program they run to check your bracelet is a simple program so they must be making a lot of money

  46. Andrew RR- current ada county probationer
    Oct 19, 2011, 2:06 pm

    After I was taken off SCRAM my color was changed to green which gets called 3 times a week. This kind of confused me, because they could of just done this in the first place to prevent me from drinking.

  47. Andrew RR yes she is making money off of the SCRAM units. We as PO’s had NO choice but to put probationers on the unit OR violate. It bothers me that half MUST be paid up front or else a PV will be issued, I had people giving blood to just come up with that money. As for the color code, green is 3 times a week and I agree that we could have just done that instead of SCRAM but I wasn’t the one making the money there.

  48. Pissed - current probationer
    Oct 19, 2011, 4:08 pm

    Tina, i would like to speak with you. is there any way to contact you?

  49. Pissed - current probationer
    Oct 19, 2011, 7:39 pm

    Instead of continuing to talk about it, we need to take action.
    These commishes dont expect us to do anything but talk about it.
    Lets do something real.

    I propose a full display of disapproval. Picketing at ACMPS and at city hall, and at the court house. The week of 10-23 – 10-29

    Comment if you agree and lets get organized. Everyone here is right and in agreement. What they are doing is ilegal. Lets hold them accountable.

  50. Pissed - current probationer
    Oct 19, 2011, 8:00 pm

    Look, Nancys company for “testing is called ACCU LABs and what do you wanna bet she’s not breeding bird dogs with it.

  51. PISSED: You stole my line…

    If you want to e-mail me I will see if I can help you. lexpublica@gmail.com. I do NOT work for probation – promise. I am an attorney here in Boise.

  52. Pissed - current probationer
    Oct 21, 2011, 4:15 pm

    Users beware PUBLICA sounds like a joke. I recieved an e mail from them and i personally think its the ACMPS trying to be sneeky to figure out who is exercising their 1st ammendment rights and quietly punish them. I base this on the fact he/she states they work for the public defenders office and WANT to look into the case for me. WHEN HAS THE PUBLIC DEFENDERS OFFICE EVER GIVEN A DAMN. Sounds way too fishy.

    EDITOR NOTE–We believe PUBLICA to be legit based on off the site private e-mails we have received. While we don’t endorse any of the screen name people, we try to offer our best information on intentions without compromising anonymity.

  53. what happened to Austin Plew, Did Ada county let himslide by or did the judges?

    EDITOR NOTE– Preliminary hearing set for Dec. 22 with a Canyon County prosecutor, at Ada Court.

  54. probationer2
    Dec 11, 2011, 10:21 pm

    DEc 22nd is the preliminary hearing for Mr. good ole’ Plew.

  55. Is it staying in Boise?
    EDITOR NOTE–Yes at this time there has been no change of venue, only out of county prosecutor.

  56. exprobationer
    Dec 12, 2011, 11:20 am

    2 comments….publica is not working with or for ACMPS he is in fact an Ada county public defender. another little note Plews prelim date is old news.. from what I overheard at his last prelim a deal is in the works… yes I evesdropped and I will be there again on the 22nd setting right behind Mr Plew if at all possible to evesdropp again.

    EDITOR NOTE–You just blew your cover!

  57. exprobationer
    Dec 12, 2011, 5:44 pm

    whats that mean Dave??

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