Discussion and possible action on any and all matters regarding the prosecutor vacancy and whether to continue the position as a full-time city employee in the classified service or return to a part-time, outsourced independent contractor.  (Kay Marion Macuil, City Attorney)

The staff from the Prosecutor's Office have notice of this item. If they are present at the Council Meeting for this item and want to be heard, they should be heard as a courtesy since it may affect them. 

Background
The Office of City Prosecutor is a division under the Office of the City Attorney.

In August 2015, the City of San Luis switched from contracting an attorney in private practice to employing an in-house prosecutor. Since September 8, 2023, an attorney in private practice has been covering the position on a 90-day contract (expiring December 6, 2023) due Prosecutor de la Vara accepting a position with the Yuma County Attorney's Office.

What the Prosecutor Does
Prosecutors have the duty to serve justice and fairness.

Prosecution
The City Prosecutor is an attorney who enforces the laws within the jurisdiction of the San Luis Municipal Court (these are the criminal misdemeanors and contested tickets within the San Luis City Limits). The practice of law is divided into criminal and civil law Prosecutors deal with criminal law and do not litigate civil lawsuits.

The Prosecutor handles all aspects of the cases. Based on the facts, the law, and the rules of procedure, the Prosecutor decides whether a criminal matter should be charged and, if so, what should be charged. The Prosecutor also decides (on the same criteria) whether a contested case should proceed to court. From there, the Prosecutor may need to create or amend charging documents, produce timely motions, and attend hearings on such documents. If the charges are contested, the law requires a pre-trial (a settlement conference) with the defendant or, if represented, with the defendant's attorney. If it settles, the Prosecutor may prepare a plea agreement or review with the defense attorney to be sure it complies with the agreement and with constitutional and other legal standards. If it doesn't settle, then there is trial preparation. Interviewing Police, other witnesses, and the victims of the crime, determining what documents and physical evidence might be needed and what witnesses could introduce the various types of evidence. If the verdict is for the prosecution, there are sentencing recommendations and evidence of the restitution owed to the victims.

Victim Services
In all the crucial steps to prosecution, the victims of the crimes must be informed. Arizona's law requires prosecutors to maintain a victim services program.

No matter whether an employee or a contractor holds the position, the above responsibilities are the obligations of the Prosecutor.

Cost Comparison for Services
In-House Prosecutor (Full-Time)

• The Prosecutor put in more than 40 hours per week as an exempt employee. Over the last 8 years, the Paralegal also put in more than 40 hours per week. For the fiscal year ending June 30, 2023, she worked 355.33 hours overtime. Since July 1, 2023, she has put in 74 hours overtime.
• In addition to performing the above-described duties, the in-house Prosecutor:
  •  made himself available for calls from San Luis Police at all times, including nights, weekends, and holidays.
  • prepared training and presented them (along with the Paralegal) to the Police on report writing and preparation for trial.,
  • created an ordinance where there was a gap in the misdemeanors in the City Code and the Arizona Statutes and
  • spoke and wrote fluent Spanish and did not need the services of an interpreter to meet with Spanish-speaking witnesses, victims, or defendants or to read witness statements in Spanish.

For the fiscal year ending June 30, 2023, the Prosecutor Division with the salary and benefits of the Prosecutor, the Paralegal, and the Legal Secretary and the maintenance and supplies for the office totaled $343,623.55. 

Outside Prosecutor (Part-Time)
The outside Prosecutor would use his or her own office and staff and not the city's.

• Private attorneys' time will be divided between San Luis prosecution and their private clients.
• Advising and providing training to the San Luis police is not expected. Attorneys have legal ethical duties of loyalty to former clients. It wouldn't be feasible for the contracted attorney to screen urgent calls from Police in the field to determine whether a former client is involved. Training might be a possibility, probably for added cost.
• Most of the local private attorneys who practice criminal law are bilingual. Those who are not bilingual have support staff who are.

In Yuma County, Wellton and Somerton have outside counsel. They charge $260.00 and $265.00 per hour, respectively. Assuming 20 hours per week, 52 weeks per year, that would be approximately $270,400.00 and $275,600.00 yearly, respectively (Somerton also pays for Westlaw or Lexis, online legal research platforms-prices vary depending on the tools and resources selected. San Luis pays $8,436.00 per year per attorney user; support staff is free). Wellton may have to pay for travel since their attorney is Phoenix-based. Both Wellton and Somerton have less population than San Luis, and their Municipal Courts are less busy.   I have received a non-binding verbal quote from a local attorney who would contract for a flat fee of $150,000.00 per year without the assistance of city staff.

In Arizona: Of the six (6) cities with a population similar to San Luis, only two (2) cities contract out for the prosecutions. Sierra Vista uses the County Prosecutor. El Mirage, for a flat fee of $120,000.00 plus an additional charge for their subcontracted transcription and translation from Spanish to English of police interviews as needed for the court. San Luis also uses a transcription-translation service because certified translators are required for court documents. For the City of San Luis, transcription-translation services cost $9,344.23 for the fiscal year that ended June 30, 2023. So, El Mirage may be about $130,000.00 per year without the assistance of city staff.

Other Considerations
Only in-house prosecutors have access to specialized training and networking on the prosecution and police advice side of criminal law practice through the Arizona Law Enforcement Legal Advisors Association. Despite Mr. de la Vara's decades of criminal law practice, he learned from being a part of the association and attending their free training.

Outside prosecutors are responsible for carrying insurance and any liability they create due to their own negligence, etc. In-house prosecutors would be on the AMRRP policy with the city.

Suggested Motion
A vote in favor of the suggested motion would change the position to an independent contractor.
A vote against the suggested motion would leave the position as an employee in the classified service.