Summary

Proposal would implement transition of private-agency employees to public employment, as mandated under State Supreme Court ruling and tentative legal settlement

Story

As a consequence of a ruling by the state Supreme Court and a tentative legal settlement, public defense services in King County would transition to an Executive branch department split into two separate divisions, under a new model proposed today by King County Executive Dow Constantine and sent to the Metropolitan King County Council.

"We are proud to welcome public defenders as County employees. This is a new reality, and one we did not choose - but it's a reality that requires a different model for the employees and for the County government," said Executive Constantine. "We've looked at many jurisdictions. We have found none where hundreds of public employees work for - and are hired and trained, managed and disciplined, promoted and fired - by a private agency."

For 40 years, King County has provided public defenders for those accused of crimes but unable to pay an attorney. Those services have been contracted out since 1973 to private, non-profit corporations. The employees of four private agencies sued the County in 2006 to obtain public retirement benefits in the class-action suit known as Dolan v. King County.

The state Supreme Court in 2011 ruled that the private defense firms were, in its words, "arms and agencies" of the government, and that the defenders were therefore public employees for the purpose of retirement benefits.

The Executive on Jan. 14 sent the County Council a tentative settlement with the Dolan plaintiffs under which they will in fact become full County employees on July 1, when the County's contracts with the private agencies expire.

The restructuring proposed today to deal with this new reality provides three elements for the transition:

• Creation of an Executive branch department for public defense, accountable to the County Executive, that can increase the voice and role of public defense within the criminal justice system.
• Creation of two separate divisions within the new department, to prevent conflicts of interest in complex cases that may involve multiple defendants or multiple charges and other special circumstances. The transition to two divisions will occur over time after July 1, 2013.
• Creation of a Public Defense Advisory Board, to support the director of the department of public defense, and to provide additional assurance of the independence of the legal practice of public defense within the Executive branch.

The operating costs of the proposed new model are anticipated to fall within what is currently budgeted to provide public defense services for the indigent.

Seven members representative of the King County criminal defense community would serve on the proposed advisory board:

• One representing the Washington State Bar Association
• One representing the King County Bar Association
• One representing a minority bar group with representation revolving among these groups each membership term
• A retired judge from the King County Superior or District Court
• A faculty member of a law school in Washington state
• Two members associated with community organizations that serve the indigent population of King County.

The proposal is designed around three core principles, all derived from the American Bar Association's Ten Principles of a Public Defense Delivery System:

• Independence from political influence
• Support for a quality workforce and performance
• Making the most of resources, value, and operational efficiency.

The proposal was developed with input in December from criminal justice stakeholders, including the directors of the four nonprofit public defense agencies, public defense attorneys with the agencies and the assigned counsel panel, the affected union, and the courts. Outreach expanded in January and February to include organized bar leaders, other governments served by the public defense organizations that contract with King County, and lawyers experienced with law firm mergers.

"I know the Council shares my commitment - that public defense in King County will continue to meet the highest standards, and be delivered in a way that is client-centered, free from political influence, and cost-effective for the public," said Executive Constantine.