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HomeMy WebLinkAboutITEM V-Gcrnr or AGENDA BILL APPROVAL FORM # WASHINGTON Agenda Subject: Resolution No. 4650 Date: October 25, 2010 Department: Attachments: Budget Impact: Human Resources Resolution No. 4650 Administrative Recommendation: City Council introduce and adopt Resolution No. 4650 Background Summary: The State legislature finds that effective legal representation should be provided for indigent persons consistent with the constitutional requirements of fairness, equal protection, and due process in all cases where right to counsel attaches. The City currently contracts public defense services for indigent defendants with the Law Offices of Matthew J. Rusnak. The Law Offices of Matthew Rusnak is providing effective and efficient Public Defense Services for the City of Auburn. The City of Auburn desires to continue to contract its Public Defense Services and has negotiated a two-year contract for those services. The cost of the contract is contained in the proposed 2011-2012 biennial budget. S1206-1 Reviewed by Council & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O ❑ Airport ® Finance ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ® Municipal Serv. ❑ Finance ❑ Parks ❑ Human Services ❑ Planning & CD ❑ Fire ❑ Planning ❑ Park Board ❑ Public Works ❑ Legal ❑ Police ❑ Planning Comm. ❑ Other ❑ Public Works ❑ Human Resources ❑ Information Services Action: Committee Approval: ❑Yes ❑No Council Approval: ❑Yes ❑No Call for Public Hearing Referred to Until Tabled Until Councilmember: Backus Staff: Heineman Meeting Date: December 6, 2010 Item Number: Am= RESOLUTION NO. 4 6 5 0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A CONTRACT FOR PUBLIC DEFENSE SERVICES FOR JANUARY 1, 2011 - DECEMBER 31, 2012 BETWEEN THE CITY AND THE LAW OFFICES OF MATTHEW J. RUSNAK WHEREAS, the State legislature finds that effective legal representation should be provided for indigent persons consistent with the constitutional requirements of fairness, equal protection, and due process in all cases where right to counsel attaches; and WHEREAS, the City of Auburn Municipal Court presides over cases involving indigent persons and the City of Auburn provides Public Defense Services; and WHEREAS, the City of Auburn desires to continue to contract its Public Defense Services; and WHEREAS, it is fiscally responsible for the City of Auburn maintain its contract with the Law Offices of Matthew Rusnak; and WHEREAS, the Law Offices of Matthew Rusnak is providing effective and efficient Public Defense Services for the City of Auburn. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Resolution No. 4650 October 25, 2010 Page 1 Section 1m Purpose. The City Council hereby authorizes the execution of the Agreement between the City of Auburn and THE LAW OFFICES OF MATTHEW J. RUSNAK, to execute a Contract for Public Defense Services for January 1, 2011 through December 31, 2012, in substantial conformity with the contract attached hereto and denominated as Exhibit "A" and incorporated herein by reference. Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. This resolution shall be in full force and effect upon passage and signatures hereon. DATED and SIGNED this day of 2010. CITY OF AUBURN PETER B. LEWIS MAYOR ATTEST: Danielle E. Daskam City Clerk Resolution No. 4650 October 25, 2010 Page 2 APPROVED AS TO FORM: Daniel B. Heid City Attorney Resolution No. 4650 October 25, 2010 Page 3 PUBLIC DEFENSE SERVICES CONTRACT CITY OF AUBURN, WASHINGTON JANUARY 1, 2011 - DECEMBER 31, 2012 THIS AGREEMENT made and entered into by the City of Auburn; hereinafter referred to as "CITY," and The Law Offices of Matthew J. Rusnak, hereinafter referred to as "PUBLIC DEFENDER," do hereby agree to the following terms and conditions: 1. APPOINTMENT OF DEFENDANTS FOR PUBLIC DEFENSE SERVICES: A. General: 1. The CITY shall make public defense services available to all persons who so qualify after application to and approval of the Court or an independent public defense screen or are in custody and directly appointed by the Court. The PUBLIC DEFENDER will provide legal representation for each of these defendants from court appointment or screening through trial, sentencing, post conviction review, and any appeals to Superior court or Washington appellate courts. The PUBLIC DEFENDER, or subcontractor of the PUBLIC DEFENDER, will provide defense services at daily in-custody bail hearings, will attend the arraignment calendar, and will be available, in person, to talk to and meet indigent defendants at the Auburn Detention Center, South Corrections Entity (SCORE), or other alternative locations. The PUBLIC DEFENDER will also provide representation for the Mental Health Court calendar and a Community calendar should one be established during the term of the contract. 2. Screening shall be available on a regular basis at or near the CITY'S municipal court. The CITY shall pay the cost of screening services. The CITY shall provide to the PUBLIC DEFENDER, at no cost, copies of all discoverable materials regarding persons qualifying for public defense services and a copy of the Auburn Municipal Code. At the request of the PUBLIC DEFENDER, copies of additions and amendments thereto will be provided. B. Screening Procedure: 1. The criteria for appointment of the PUBLIC DEFENDER to represent indigent defendants shall be as follows: (1) the defendant is charged with a criminal offense by the CITY under the Auburn City Code; (2) the offense is one for which a person can be imprisoned; and (3) the defendant qualified financially for PUBLIC DEFENDER services pursuant to court rule and RCW 10.101.005 et. seq. and shows proof of income such as, but not limited to, unemployment benefit compensation, income tax returns, or pay stubs. Should the PUBLIC DEFENDER determine a defendant is not eligible for assigned counsel; the PUBLIC DEFENDER will so inform the court and move to Exhibit A Resolution 4650 Public Defender Contract January 1, 2011 - December 31, 2012 Page 1 of 10 withdraw from the case. 2. Screening information shall be confidential and the defendant shall swear or certify under penalty of perjury that the information is true and complete. Upon appointment, the screener shall immediately deliver to the PUBLIC DEFENDER the screener's documents on each case that is assigned. The screener shall be responsible for delivering a letter of introduction, which has been provided by the PUBLIC DEFENDER to every defendant who qualifies for and is appointed to be represented by the PUBLIC DEFENDER. This screener shall obtain the defendant's mailing address and mail the letter of introduction to the defendant if necessary. C. Reporting Procedures: 1. PUBLIC DEFENDER: The PUBLIC DEFENDER shall file monthly reports, with the CITY indicating the following: (1) the first, middle and last name of each defendant who has been appointed and a Notice of Appearance was filed; (2) date of appointment, criminal cause number(s) for the defendant; and (3) if the case was "conflicted" at any time during the process. Further, the report shall designate whether the defendant was appointed by the Court or by the screener. In addition, the PUBLIC DEFENDER shall provide a monthly report to the City showing all cases in which the defendant has been sentenced or acquitted. All reports are due to the City on the 1st day of the month following the appointment and filing of the Notice of Appearance or case disposition, along with the invoice, based on actual case count. II. RESPONSIBILITIES OF PUBLIC DEFENDER A. The PUBLIC DEFENDER shall be responsible to provide competent professional legal services to the defendants represented. The PUBLIC DEFENDER shall employ and/or associate a sufficient number of attorneys and staff to provide such service. The CITY shall incur no extra cost for the employed and/or associated attorneys and staff. The PUBLIC DEFENDER and each attorney so employed and/or associated shall be an active member in good standing of the Washington State Bar Association. Any attorney employed and/or associated by the PUBLIC DEFENDER who does not have at least three years of experience shall practice under the direct supervision of any attorney who does have three years experience. Such experience shall include at least one-third emphasis on criminal defense. B. Legal interns involved in the representation of defendants in court must have all of their work reviewed and/or countersigned by a supervising attorney. No legal intern shall have sole responsibility for administering and representing any of the defendants appointed and represented pursuant to the contract herein. Exhibit A Resolution 4650 Public Defender Contract January 1, 2011 - December 31, 2012 Page 2 of 10 C. Case loads of the PUBLIC DEFENDER and any individual attorneys employed and/or associated therewith should be limited to that level of assignments which allows an attorney to give each defendant's case sufficient time and effort to ensure effective representation. All attorneys representing defendants pursuant to the contract herein shall comply with the following: (1) attend at least an average of 15 hours of continuing legal education each year, of which at least an average of seven hours shall be specifically related to criminal defense or trial practice; (2) have regular and routine review of their caseload with a supervising attorney to ensure that there is objective monitoring and evaluation of each attorney. III. SERVICES PROVIDED BY THE PUBLIC DEFENDER A. Scope of Service: 1. The PUBLIC DEFENDER shall represent each defendant from the date of appointment (or at in-custody hearings as the case may be), through sentencing and the first appeal of right pursuant to the RALJ rules. The PUBLIC DEFENDER or the CITY may request re-screening of a defendant whose case is on appeal. Appeals shall not be considered new case assignments. In addition, the Public Defender shall be present at arraignment hearings on stand-by should a defendant request legal advice. 2. Defendant defined: A single individual charged with a maximum of four (4) criminal counts on a maximum of two criminal citations arising out of the same general course of conduct over a short period of time. Example: a single person charged with three (3) different Driving While License Suspended charges would be counted as three (3) separate clients because the charges necessarily took place at separate times. However, a single individual charged with Reckless Driving, DUI, Hit and Run (Attended) and Driving While License Suspended arising out of one event (on two citations) would be counted as one client. 3. Case Count: A case is counted where: (1) Pretrial: Each pretrial case is counted only once. Irrespective of any subsequent reappointments pursuant to FTA. They will be counted at the time of first appointment. Cases subsequently conflicted, or where a private attorney is hired, will be noted on the next monthly report, but is not counted as a Public Defender case; (2) Post trial convictions: Case where a defendant was previously represented by the Public Defender, that were previously counted when they were in pretrial status, will not be counted unless they FTA at a post conviction hearing. Post conviction cases where defendants FTA and subsequently reappointed to the Public Defender will be counted again; however, this shall occur only once. No matter how many times a defendant FTA and the Public Defender is reappointed when the case is in the post-conviction status, the case will be recounted only once. In the future, the PUBLIC DEFENDER agrees to complete representation for any client for which a Notice of Appearance has been filed, even if court proceedings continue Exhibit A Resolution 4650 Public Defender Contract January 1, 2011 - December 31, 2012 Page 3 of 10 beyond the date when a successor public defender becomes responsible for public defense services. This does not include post conviction reviews. 4. The PUBLIC DEFENDER may associate or employ additional or different attorneys to represent defendants at no extra cost to the CITY. Any counsel associated with or employed by the PUBLIC DEFENDER shall have the authority to perform the services called for herein. All associated counsel hired pursuant to this section shall be admitted to practice pursuant to the rules of the Supreme Court of the State of Washington. Sufficient counsel shall be provided to represent defendants during vacation, illnesses, and settings in more than one courtroom. No legal interns shall be used unless agreed to by the CITY in advance. The PUBLIC DEFENDER agrees to pay each subconsultant under this agreement for satisfactory performance of its contract no later than 45 days from the receipt of each payment the consultant receives from the City. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the City. 5. Conflict Cases: Both parties agree that cases will be conflicted only when a recognized conflict occurs (not a potential conflict). Upon discovery of an actual conflict with the representation of a specific defendant by the PUBLIC DEFENDER (as defined in the Rules of Professional Conduct), the PUBLIC DEFENDER shall immediately inform the CITY, the court and the defendant in writing of the conflict by issuing a Notice of Intent to Withdraw. Only a partner in the PUBLIC DEFENDER'S firm will be permitted to make the final decision regarding whether a conflict actually exists. The PUBLIC DEFENDER will assist the City with a list of qualified law firms with which the CITY can contract for conflict public defense services. A minimum of four conflict firms will be maintained on the list. 6. Upon receiving notice of a conflict of interest and agreeing thereto, it will be the CITY'S financial responsibility to pay alternative counsel to represent the defendant. The Court will rotate, in order, "conflicted" cases to each firm. However, if the CITY contests the Notice of Intent to Withdraw, then the CITY shall immediately file a note for motion regarding the propriety of the withdrawal and request that the court notify the defendant and the PUBLIC DEFENDER of the date, time and nature of the hearing. All parties shall be bound by the court's ruling or any appeal therefrom. Office appointments for the defendants appointed to the PUBLIC DEFENDER should be made available at least during regular business hours of 8:00 a.m. until 5:00 p.m., Monday through Friday. Office appointments should be made available, at an office located in the City of Auburn, within a reasonable distance from the municipal courthouse and on or near a public transportation service route. Appointments shall be available at the courthouse for defendants who are otherwise Exhibit A Resolution 4650 Public Defender Contract January 1, 2011 - December 31, 2012 Page 4 of 10 unable to obtain transportation to the PUBLIC DEFENDER'S office. Local non-service- charge phone service throughout the municipality shall be available as well as toll free and collect phone service from the CITY jail and the King County jails. 8. The PUBLIC DEFENDER will make every effort to coordinate cases with City prosecutors at least once per week, in advance of upcoming court dates. 9. The PUBLIC DEFENDER will be available for all calendars pursuant to the will of the court. . Public Defense requirements would generally appear as follows. Jail is defined as either the SCORE facility or Auburn Detention facility. Staffing of SCORE requirements must ensure no calendar down time. Day Number of Lawyers Comments Monday (every other) 3 Motions & bench trials (1 in CR 1) & interpreter calendar (1 in CR 2 & 1 in Jail Monday (opposite) As determined by Public defender Jury trials Tuesday 3 Pre-trial (3 in CR 1) then Jail (1) Wednesday 2 In custody (2 in Jail) Thursday (a.m.) 2 Arraignment (1 in CR 1 then 1 Jail) Thursday (p.m.) 2 Review Calendars (1 in ea CR) Friday a.m. 2 In custody 2 in Jail Friday (every other) 1 Readiness (1 in CR 2) Friday p.m. (every other) 1 Probation review (1 in CR 2) 10. The PUBLIC DEFENDER shall provide to the City of Auburn Police Department and Auburn Detention Center the telephone number or numbers at which the PUBLIC DEFENDER can be reached twenty-four (24) hours each day for critical stage advice to defendants during the course of police investigations and/or arrests, as required by statute, case law and applicable court rule in municipal misdemeanor cases. 11. The PUBLIC DEFENDER shall provide to the screener for dissemination to every represented defendant a letter in plain, simple and concise language outlining the defendant's responsibilities with regard to the attorney-client relationship. 12. The PUBLIC DEFENDER shall institute and maintain a procedure to review defendants' complaints. Complaints, which are not immediately resolved by the PUBLIC DEFENDER, shall be referred to the Washington State Bar Association and/or the court. Exhibit A Resolution 4650 Public Defender Contract January 1, 2011 - December 31, 2012 Page 5 of 10 13. Assignment or Subcontractors: No assignment or transfer of the Contract or of any interest in the Contract shall be made by the PUBLIC DEFENDER without the prior written consent of the CITY. 14. All documents, reports, memoranda, plans, and any other materials created or otherwise prepared by the contractor as part of his performance of this Agreement (the "Work Products") shall be owned by and become the property of the City, and may be used by the City for any purpose beneficial to the City. The consultant may retain copies of any documents, reports, etc. it authors. IV. COMPENSATION Compensation to the PUBLIC DEFENDER for public defense services beginning January 1, 2011 through December 31, 2012 shall be paid at the rate of Twenty-Six Thousand Two Hundred Fifty Dollars ($26,250.00)/month. In the event the PUBLIC DEFENDER files an appeal on behalf of a qualified client, the CITY will pay an additional Four Hundred Dollars ($400.00) to the PUBLIC DEFENDER upon its litigation and disposition. Should the CITY file an appeal in a case involving the PUBLIC DEFENDER, the CITY will pay the PUBLIC DEFENDER and additional Four Hundred Dollars ($400.00) upon its litigation and disposition. In addition, the CITY will pay for transcription costs required for the appeal, regardless of which party files the appeal. All videotapes, CDs, audiotapes, video disks, photocopies, color copies of images, or other media associated with discovery shall be provided by the City at no cost to the PUBLIC DEFENDER. The PUBLIC DEFENDER will submit an invoice no later than the 15th day of each month. Pursuant to regular CITY policy regarding payment for services rendered, the CITY shall make payment to the PUBLIC DEFENDER on the first day following the first CITY Council meeting following the timely submittal of the PUBLIC DEFENDER report and invoice. The PUBLIC DEFENDER agrees and understands that he/she is an independent contractor and not the agent or employee of the City. The manner and means of providing the professional services herein are under the sole control of the PUBLIC DEFENDER. The PUBLIC DEFENDER shall be solely responsible for reporting his/her hours, earnings, income tax, and social security to the applicable federal and state agencies. The PUBLIC DEFENDER understands that he/she is not entitled to any of the benefits provided by an employer to employees including but not limited to paid leave, health insurance coverage, retirement programs or unemployment insurance. Exhibit A Resolution 4650 Public Defender Contract January 1, 2011 - December 31, 2012 Page 6 of 10 V. TERM OF CONTRACT This Agreement shall remain in full force and effect from January 1, 2011, through December 31, 2012. Moreover, this Agreement may automatically be annually renewed under the terms of this at the conclusion of the term of this Agreement, unless either party provides the other with notice of intent not to extend this Agreement. Said notice shall be received by the other party not less than six (6) months prior to the expiration of the term of this Agreement or the expiration of any extension thereof. VI. POLICY AGAINST DISCRIMINATION The PUBLIC DEFENDER shall not discriminate in employment practices on the basis of race, creed, color, age, disability, religion, sex or sexual orientation and follow the CITY's policy on non-discrimination. The PUBLIC DEFENDER should comply with all local, state, and federal laws regarding discrimination. VII. PUBLIC DEFENSE STANDARDS The PUBLIC DEFENDER shall comply with the Rules of Professional Conduct. The PUBLIC DEFENDER shall comply with the City of Auburn Standards for Public Defense as adopted by the CITY on December 18, 1989, pursuant to Resolution 2014 and any future standards for public defense services that may be adopted by the City pursuant to Chapter 10.101.030 of the RCW. The PUBLIC DEFENDER shall submit an affidavit to the Director of Human Resources/Risk & Facilities Management, stating that the PUBLIC DEFENDER is in compliance with such standards. This affidavit shall be submitted thirty (30) days after the PUBLIC DEFENDER has received a copy of such standards. VIII. INSURANCE AND INDEMNIFICATION Insurance The PUBLIC DEFENDER shall be responsible for maintaining, during the term of this Agreement and at its sole cost and expense, the types of insurance coverages and in the amounts described below. The PUBLIC DEFENDER shall furnish evidence, satisfactory to the City, of all such policies. During the term hereof, the PUBLIC DEFENDER shall take out and maintain in full force and affect the following insurance policies: a. Commercial General Liability insurance, insuring the City and the PUBLIC DEFENDER against loss or damages arising from premises, operations, independent Exhibit A Resolution 4650 Public Defender Contract January 1, 2011 - December 31, 2012 Page 7 of 10 contractors and personal injury and advertising injury. The City shall be named as an insured under the PUBLIC DEFENDER's Commercial General Liability insurance policy with respect to the work performed for the City, with minimum liability limits of $1,000,000 combined single limit for personal injury, death or property damage in any one occurrence. b. Such workmen's compensation and other similar insurance as may be required by law. C. Professional errors and omissions liability insurance with minimum liability limits of $1,000,000. No Limitation. PUBLIC DEFENDER's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the PUBLIC DEFENDER to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. If, for any reason, the PUBLIC DEFENDER loses its professional liability insurance coverage, the PUBLIC DEFENDER must immediately notify the City's Director of Human resources/Risk and Facilities Management. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Professional Liability and Commercial General Liability insurance: a. The PUBLIC DEFENDER's insurance coverage shall be primary insurance as respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the PUBLIC DEFENDER's insurance and shall not contribute with it. b. The PUBLIC DEFENDER's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. Indemnification The PUBLIC DEFENDER shall indemnify, defend and hold harmless the City and its officers, agents and employees, or any of them from any and all claims, actions, suits, liability, loss, costs, expenses, and damages of any nature whatsoever, including attorney fees, by any reason of or arising out of the act or omission of the PUBLIC DEFENDER, its officers, agents, employees, or any of them relating to or arising out of the performance of this Agreement except for injuries and damages caused by the sole negligence of the City. If a final judgment is rendered against the City, its officers, Exhibit A Resolution 4650 Public Defender Contract January 1, 2011 - December 31, 2012 Page 8 of 10 agents, employees and/or any of them, or jointly against the City and the PUBLIC DEFENDER and their respective officers, agents and employees, or any of them, the PUBLIC DEFENDER shall satisfy the same to the extent that such judgment was due to the PUBLIC DEFENDER's negligent acts or omissions. IX. TERMINATION OF CONTRACT A. Grounds for Immediate Termination. The City retains the right to immediately terminate this contract in the event any of the following incidents occurs: 1. Failure to provide timely proof of comprehensive professional liability insurance due at any of the times required herein. 2. Loss of comprehensive professional liability insurance coverage regardless of the reason therefor. 3. Any action that, at the sole discretion of the City, could bring discredit on the City. B. Additionally, either the CITY or the PUBLIC DEFENDER may terminate this contract in the event of the following: 1. Any other breach of this contract; or 2. Violation of the Rules of Professional Conduct; or 3. Good and Sufficient Cause Such termination under this subpart is effective only if the party terminating the contract has provided written notice of the deficiency to the second party, and the deficiency is not corrected in a timely manner to the reasonable satisfaction of the first party. Written notice of termination under Section IX (B) shall be given by the party terminating this contract to the other not less than sixty (60) days prior to the effective date of the termination. C. In the event of termination or upon completion of the contract, the following conditions may apply: (1) the PUBLIC DEFENDER shall be relieved of any further responsibility for receiving new case assignments under this contract; (2) the PUBLIC DEFENDER will continue to represent those defendants assigned prior to the date of termination and who have a trial date set and shall complete representation in all such cases; provided that, after termination or completion of the contract pursuant to court rules and the Rules of Professional Conduct, the PUBLIC DEFENDER may withdraw from any case as permitted by court rule. Exhibit A Resolution 4650 Public Defender Contract January 1, 2011 - December 31, 2012 Page 9 of 10 DATED this Day of , 2010. CITY OF AUBURN Peter B. Lewis Mayor ATTEST: Danielle E. Daskam City Clerk Date APPROVED AS TO FORM: Daniel Heid City Attorney Date Law Offices of Matthew J. Rusnak Representative Date Exhibit A Resolution 4650 Public Defender Contract January 1, 2011 - December 31, 2012 Page 10 of 10