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Updated Friday, November 30, 2012 at 12:04 PM

Making public defenders King County employees riles many

By Jennifer Sullivan
Seattle Times staff reporter

King County's complicated public-defense system of four separate nonprofit agencies representing about 30,000 defendants annually has been praised by legal scholars and the late Prosecutor Norm Maleng.

But the county is pushing a plan that would dissolve the independent agencies and make public defenders county employees, a move proponents say is in response to a lawsuit filed by a public defender.

Under the plan, the nearly 400 employees of the four agencies — The Defender Assocation, Society of Counsel Representing Accused Persons, Associated Counsel for the Accused and Northwest Defenders Association — could potentially become King County employees by July 1, said David Chapman, who heads the King County Office of Public Defense.

Chapman's office assigns cases to the four firms, dividing the nearly $40 million per year the county spends on public defense.

The proposal stems from a lawsuit filed in 2006 against the county by Kevin Dolan, a public defender at the Associated Council for the Accused. Dolan, who has worked in public defense for 32 years, said he filed the lawsuit on behalf of employees of the four defender groups who sought enrollment in the county's retirement system.

"We could go back to the table and beg for scraps and they would tell us they didn't have any money," Dolan said. "The only solution was to sue them."

Last year, in response to Dolan's lawsuit, the state Supreme Court ordered King County to allow the contracted public-defense employees to enroll in the county's Public Employees Retirement System.

A settlement between county risk management and Dolan is anticipated before the end of the year, Chapman said.

Because of the Supreme Court's order, a clause requiring contracted public-defense employees be hired by King County is expected to be part of the settlement resolution.

"This is highly likely based on the settlement discussions," Chapman said.

After he announced the potential dissolution of the four public-defense agencies to the heads of the four agencies on Wednesday and Thursday, Chapman said he was met with "mixed reactions."

"There's a ton of uncertainty because we don't know the landscape. There's fear: 'Do I have a job?' 'Do I have to interview for a job I've had for 20 years?' " Chapman said.

In a joint statement released Thursday, the four firms said they learned that King County Executive Dow Constantine "intends to stop contracting with our agencies."

"Instead, the County Executive proposes — in some undefined fashion — to bring the public-defense function in-house and convert many of our staff to public employment. The decision to create a County Public defender agency was made without input or analysis from our offices, bar leaders, or community leaders representing our clients," the statement said.

Defense-agency leaders said it will be impossible to reorganize representation for clients, assess additional costs, ensure caseloads are handled and establish new systems by July 1.

In a statement released Friday morning, Frank Abe, Constantine's spokesman, said the issue was forced by the Supreme Court.

"The only conversation we're having now is how to implement this decision before the current contracts with the agencies expire on June 30. We are gathering everyone's input to inform that plan, and those talks are starting now," the statement said.

Bob Boruchowitz, professor at Seattle University Law School and former director of The Defender Association for 28 years, calls any proposal bringing the independent contractors under county employment "disturbing."

"King County has one of the best public-defender systems in the country. This has been recognized by scholars as well as the late Norm Maleng," Boruchowitz said, referring to the longtime prosecutor who died in May 2007. "One of the values of the existing nonprofit system is the independence of the four directors in setting policies and being creative about how they represent their clients."

Answers on how the process would proceed if the settlement is signed are few and far between.

The most likely scenario is the creation of one county in-house public-defense firm run by the Office of Public Defense.

The structure of firm, where the firm will be located, how the four agencies case files would be morphed, how much the move will cost and how conflict cases will be managed are among the biggest questions being asked by employees of the four firms.

Snohomish County contracts with a single nonprofit agency for public defense.

Bill Jaquette, who directs the Snohomish County Office of Public Defense, said King County's system is extremely uncommon for a large county.

Most of the state's large counties, including Pierce, Skagit, Whatcom, Spokane and Yakima, have in-house public-defense firms along with separate prosecutor's offices, Jaquette said.

"I have always looked at King County having four agencies as being a very nice luxury. It gives you a lot of very different perspectives," Jaquette said. "The lawyers' reasons to have different organizations are the conflict cases."

Chapman said that every public-defense employee will be guaranteed a job with King County. However, in the event that there's no room for some they might be assigned to a different division of the county, although not necessarily in a legal division.

Chapman said the Metropolitan King County Council is aware of a possible settlement and has ordered his office to "do outreach [with the public-defense agencies] if they're going to do a structure change."

He said his goal of bringing forth the issue before the settlement is signed is to allow for people to discuss what "the structure going to look like for public defense."

"It's a very mammoth project," Chapman said. "It's a moving target."

The county's practice dates to 1970, when it contracted with The Defender Association. Before that, criminal defendants were appointed representation directly by the courts, Boruchowitz said.

For the more than 40 years that King County has contracted public-defense work, although the idea of bringing it in-house has been reviewed numerous times.

But, said Chapman, the startup costs of creating a new branch of county government was always deemed too expensive.

Chapman couldn't say how the county would handle the costs of a new system.

Jaquette preaches the benefits of the independent public-defense system.

"We're not the government, both prosecuting and defending the defendant. We're a nonprofit, spiritually separate," Jaquette said.

Seattle Times news researcher Miyoko Wolf contributed to this report.

Jennifer Sullivan: 206-464-8294 or jensullivan@seattletimes.com.

On Twitter @SeattleSullivan.


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