HomeMy WebLinkAbout4496RESOLUTION NO. 4 4 9 6
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 JULY 1, 2009 - DECEMBER 31, 2009
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 to periodically
"shop" for quality defense services with the best return on its investment; and
WHEREAS, the City of Auburn published a Request for Proposal for the
purpose of reviewing bids that provide quality public defense service; and
WHEREAS, the City of Auburn has reviewed each proposal submitted in
accordance with the Request for Proposal; and
Resolution No. 4496
June 3, 2009
Page 1
WHEREAS, the City of Auburn finds the bid of The Law Offices of
Matthew J. Rusnak best meets the requirements.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
Section 1. Purpose. The City Council hereby authorizes the execution
of the Agreement befinreen the City of Auburn and THE LAW OFFICES OF
MATTHEW J. RUSNAK, to execute a Contract for Public Defense Services for
July 1, 2009 through December 31, 2009, 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 2009.
CITY OF AUBURN
~
~ PE- R . LEWIS
MAYOR
Resolution No. 4496
June 3, 2009
Page 2
ATTEST:
Da 'elle E. Daskam
City Clerk
APPROVED AS TO FORM:
Resolution No. 4496
June 3, 2009
Page 3
PUBLIC DEFENSE SERVICES CONTRACT
CITY OF AUBURN, WASHINGTON
JULY 1, 2009 - DECEMBER 31, 2009
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:
I. 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 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
Public Defender Contract
July 1, 2009-December 31, 2009
Page 1 of 9
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 1 st
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.
C. Case loads of the PUBLIC DEFENDER and any individual attorneys
Public Defender Contract
July 1, 2009-December 31, 2009
Page 2 of 9
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
assure 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.
I11. 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 finro 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
finro 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
beyond the date when a successor public defender becomes responsible for public
Public Defender Contract
July 1, 2009-December 31, 2009
Page 3 of 9
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.
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.
7. 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
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.
Public Defender Contract
July 1, 2009-December 31, 2009
Page 4 of 9
9. The PUBLIC DEFENDER will be available for all calendars pursuant to the
will of the court. The PUBLIC DEFENDER shall be able to simultaneously staff two
active courtrooms with a minimum of one qualified lawyer in each courtroom. Further,
the PUBLIC DEFENDER shall provide at least two attorneys on all pretrial calendars
and in-custody pre-trial/review calendars and have available at least two attorneys for
jury trial dates with at least finro public defender clients scheduled for trial.
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.
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.
IV. COMPENSATION
Compensation to the PUBLIC DEFENDER for public defense services beginning
July 1, 2009 through December 31, 2009 shall be paid at the rate of Twenty-Five
Thousand Four Hundred Dollars ($25,400.00)/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.
All videotapes, CDs, audiotapes
images, or other media associated with
cost to the PUBLIC DEFENDER.
, video disks, photocopies, color copies of
discovery shall be provided by the City at no
Public Defender Contract
July 1, 2009-December 31, 2009
Page 5 of 9
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.
V. TERM OF CONTRACT
This Agreement shall remain in full force and effect from July 1St, 2009, through
December 31, 2009. Moreover, this Agreement may automatically be renewed under
the terms of this contract through December 31, 2010, 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 thirty (30)
days 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
Public Defender Contract
July 1, 2009-December 31, 2009
Page 6 of 9
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 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
Public Defender Contract
July 1, 2009-December 31, 2009
Page 7 of 9
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, 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
Public Defender Contract
July 1, 2009-December 31, 2009
Page 8 of 9
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.
DATED this Day of
CITY OF AUBURN
eter . Lewis
Mayor
ATTEST:
JUN 15 2009
Danielle E. Daskam Date
City Clerk
7 APP OVED AS TO FOR :
niel Hei Date
City Attorney
JuN 1s 2009
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Public Defender Contract
July 1, 2009-December 31, 2009
Page 9 of 9