Consent-General Government # 15.
Board of Supervisors
County Counsel
- Meeting Date:
- 04/04/2023
- Brief Title
- Extend Indigent Defense Panel Contracts
From:
Philip J. Pogledich, County Counsel
Staff Contact:
Philip J. Pogledich, County Counsel, x8172
Supervisorial District Impact:
Countywide
Subject
Authorize the County Counsel to execute new three-year contracts with local attorneys for conflict indigent defense services in the amount of $13,130.46/month per attorney for the 2023-24 fiscal year, with a stipend for the panel administrator and minor cost of living adjustments in subsequent fiscal years. (No general fund impact) (Pogledich)
Recommended Action
Authorize the County Counsel to execute new three-year contracts with local attorneys for conflict indigent defense services in the amount of $13,130.46/month per attorney for the 2023-24 fiscal year, with a stipend for the panel administrator and minor cost of living adjustments in subsequent fiscal years.
Strategic Plan Goal(s)
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Safe Communities |
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County Mandated Service |
Reason for Recommended Action/Background
State law requires the County to provide representation for indigent defendants in misdemeanor and felony criminal trials and related proceedings. The Office of the Public Defender handles most such work, but at times the Public Defender is unable to handle particular matters due to a conflict of interest (such as in multi-defendant cases) or other reasons. In such instances, the Court will appoint a private practice attorney to provide representation at the County's cost.
To control such costs, the County has long (at least 40 years) contracted with a panel of local attorneys to provide conflict indigent defense services at a flat monthly rate. The panel currently consists of five attorneys that handle felony and misdemeanor matters regularly plus a sixth attorney (not included in this Board item) that handles misdemeanor appeals at an hourly rate on an as-needed basis. One of the attorneys also serves as the panel administrator, with responsibility for monitoring case assignments and handling other tasks essential to panel operations for a stipend of $2,000/month on top of the monthly rate for services.
Total costs for panel services have varied from year to year, depending on the number of panel attorneys and, to a lesser degree, on annual inflation-based adjustments in the monthly rate, reimbursements provided for ancillary expenses, and (infrequently) additional compensation for extraordinary services. The total net County cost over the past few fiscal years for all panel services, including misdemeanor appeals, has been:
FY 2019-20: $951,690.89
FY 2020-21: $846,753.52
FY 2021-22: $831,367.38
Over the term of the existing three-year contract, monthly compensation rates have increased from a starting rate of $12,000 in 2020-21 to $12,873 in the current (third) fiscal year, an overall increase of about 7% over the past three years. The proposed new agreement incorporates the annual cost of living adjustments (COLA) provided to the Attorneys Unit (2/3% on 7/1/2024 and 7/1/2025 respectively), with a starting monthly rate per attorney effective July 1, 2023 of $13,130.46. The COLA for the final year of the term would be 2% or whatever percentage is negotiated by the Attorneys Unit for that year, whichever is more. Aside from this annual adjustment, actual costs should be very similar to net County costs over the past few years.
The current contracts will expire on June 30, 2023. Discussions with the current panel of attorneys have produced a template (Att. A) for a new contract on felony and misdemeanor conflict representation that is substantially similar to the agreements utilized since mid-2020. Key provisions of the agreement template include:
To control such costs, the County has long (at least 40 years) contracted with a panel of local attorneys to provide conflict indigent defense services at a flat monthly rate. The panel currently consists of five attorneys that handle felony and misdemeanor matters regularly plus a sixth attorney (not included in this Board item) that handles misdemeanor appeals at an hourly rate on an as-needed basis. One of the attorneys also serves as the panel administrator, with responsibility for monitoring case assignments and handling other tasks essential to panel operations for a stipend of $2,000/month on top of the monthly rate for services.
Total costs for panel services have varied from year to year, depending on the number of panel attorneys and, to a lesser degree, on annual inflation-based adjustments in the monthly rate, reimbursements provided for ancillary expenses, and (infrequently) additional compensation for extraordinary services. The total net County cost over the past few fiscal years for all panel services, including misdemeanor appeals, has been:
FY 2019-20: $951,690.89
FY 2020-21: $846,753.52
FY 2021-22: $831,367.38
Over the term of the existing three-year contract, monthly compensation rates have increased from a starting rate of $12,000 in 2020-21 to $12,873 in the current (third) fiscal year, an overall increase of about 7% over the past three years. The proposed new agreement incorporates the annual cost of living adjustments (COLA) provided to the Attorneys Unit (2/3% on 7/1/2024 and 7/1/2025 respectively), with a starting monthly rate per attorney effective July 1, 2023 of $13,130.46. The COLA for the final year of the term would be 2% or whatever percentage is negotiated by the Attorneys Unit for that year, whichever is more. Aside from this annual adjustment, actual costs should be very similar to net County costs over the past few years.
The current contracts will expire on June 30, 2023. Discussions with the current panel of attorneys have produced a template (Att. A) for a new contract on felony and misdemeanor conflict representation that is substantially similar to the agreements utilized since mid-2020. Key provisions of the agreement template include:
- Clear descriptions of the scope of services to be provided and the responsibility of individual attorneys for certain related costs (Section I.A-C);
- Equal monthly compensation for all panel attorneys with the exception of a stipend for the panel administrator of $2,000/month;
- A provision for good faith negotiations in the event an individual attorney spends substantially more or less time on conflict indigent defense services than expected at the inception of the agreement (Section II.A);
- A well-defined process for any requests for extra compensation (these are not common), including increased discretion for the Office of the County Counsel and a requirement of Board approval of significant additional compensation (Section II.C);
- Termination provisions that allow the County or an attorney to terminate an agreement on 90 days advance notice, as well as related provisions on the post-termination handling of existing cases (Section IV);
- Robust case information and workload reporting requirements; and
- Provisions requiring attorney availability by phone or in-person for client meetings and, if an attorney shares office space with another panel attorney, adherence to ethical rules intended to protect client confidences (Section XV).
The panel administrator contract will also include language on the scope of such services, which will include the preparation of “panel procedures” for ongoing matters such as, by way of example, cases with defendants that may be eligible for Mental Health Court or Addiction Intervention Court. The goal of this requirement is to ensure a common understanding among panel attorneys on how such matters should be handled. When requested by the County Counsel, the panel administrator will collaborate with other panel attorneys to prepare written procedures addressing specific topics.
If authorized by the Board, the Office of the County Counsel will finalize the template with each attorney prior to the expiration of the current agreements on June 30, 2020. The panel administrator agreement will be identical to the other agreements aside from the inclusion of the additional scope of services language in Attachment B and the monthly stipend amount mentioned above. The Office will also present a new contract on misdemeanor appeals in the near future.
Lastly, at any point during the three-year contract term, the County can initiate a competitive solicitation process or otherwise evaluate alternative methods of providing conflict indigent defense services (e.g., a second Public Defender office, similar to certain other California counties). The panel attorneys are aware of the possibility that the County may explore one or both of these options during the contract term.
For the reasons set forth above, the Office of the County Counsel recommends that the Board authorize new three-year agreements (based on the template included as Exhibit A) with attorneys that will serve on the conflict indigent defense panel.
If authorized by the Board, the Office of the County Counsel will finalize the template with each attorney prior to the expiration of the current agreements on June 30, 2020. The panel administrator agreement will be identical to the other agreements aside from the inclusion of the additional scope of services language in Attachment B and the monthly stipend amount mentioned above. The Office will also present a new contract on misdemeanor appeals in the near future.
Lastly, at any point during the three-year contract term, the County can initiate a competitive solicitation process or otherwise evaluate alternative methods of providing conflict indigent defense services (e.g., a second Public Defender office, similar to certain other California counties). The panel attorneys are aware of the possibility that the County may explore one or both of these options during the contract term.
For the reasons set forth above, the Office of the County Counsel recommends that the Board authorize new three-year agreements (based on the template included as Exhibit A) with attorneys that will serve on the conflict indigent defense panel.
Collaborations (including Board advisory groups and external partner agencies)
None.
Fiscal Impact
Fiscal impact (see budgetary detail below)
Fiscal Impact (Expenditure)
- Total cost of recommended action:
- $ 0
- Amount budgeted for expenditure:
- $
- Additional expenditure authority needed:
- $
- One-time commitment:
- Yes
Source of Funds for this Expenditure
- General Fund
- $0
Further explanation as needed:
No funding is appropriated as part of this item. The 2% monthly compensation increase will be included in the 2023-2024 budget for the indigent defense panel budget unit.
Attachments
Form Review
| Inbox | Reviewed By | Date |
|---|---|---|
| Phil Pogledich | Phil Pogledich | 03/29/2023 11:22 AM |
- Form Started By:
- Phil Pogledich
- Started On:
- 03/01/2023 11:37 AM
- Final Approval Date:
- 03/29/2023