- Elizabeth Larson
- Posted On
Supervisors discuss indigent services report, direct staff on next steps
In August 2021, the county hired the Boston-based Sixth Amendment Center, or 6AC, a national nonpartisan nonprofit, to conduct an operational analysis of indigent defense services.
The work included observing 170 proceedings in Lake County Superior Court and interviewing stakeholders in the judiciary, indigent defense — including the contractor — as well as prosecutors and law enforcement.
That led to the completion of a report called, “The Right to Counsel in Lake County, California: Evaluation of Trial-Level Indigent Representation Services.”
The report concludes that the county’s provision of public defender services and funding lacks accountability and oversight.
It notes that while the U.S. Constitution holds the state of California responsible for ensuring adequate funding for counsel under the Sixth and 14th Amendments, California has delegated that responsibility to the counties in what has become an unfunded mandate.
The study recommends the county advocate for the state to form a legislative or gubernatorial committee to study and make recommendations “on how best to fulfill the state’s Sixth and Fourteenth Amendment responsibilities to ensure that each indigent defendant who faces the possible loss of liberty in a criminal or juvenile delinquency case receives effective assistance of counsel,” according to a staff report to the board.
It also recommends the Board of Supervisors establish and fund the operation of a nonpartisan independent commission to oversee all aspects of indigent representation services.
Ultimately, the report concludes that the Board of Supervisors should immediately establish an office of indigent representation services to carry out the day-to-day duties of the commission, headed by an executive director attorney selected by the commission.
Criticisms of the report during Tuesday’s meeting included that 6AC usually makes such recommendations to establish public defenders offices.
One of the report’s more puzzling aspects is its focus on Lake County’s property tax revenues, which it used to argue that Lake County has financial challenges that warrant state funding.
That’s despite the fact that the County Administrative Office and the Board of Supervisors used those same property tax revenue figures when moving forward on $21 million in raises over a 13-month period in 2020 and 2021.
Additionally, strong property tax revenues were cited by the County Administrative Office in December when the supervisors approved giving themselves a 40% raise.
The indigent defense services contract model
Since 2017, the county has contracted for indigent defense services with Lake Indigent Defense, or LID.
Andrea Sullivan, wife of newly elected county Treasurer-Tax Collector Patrick Sullivan, originally founded LID with partner J. David Markham, who has since left to become a Lake County Superior Court judge.
Attorney Mitchell Hauptman followed him as an administrator, working along with Sullivan, but he has also since retired, and now Sullivan administers the contract with Thomas Feimer, who like Sullivan also is a public defender, both handling full caseloads.
The 6AC report was released publicly on Jan. 30, before LID had a chance to review or respond to it.
That timing puts it just ahead of the sunset of the indigent defense contract in March. “We are in negotiations to extend the contract,” and are entering “the crucial negotiation phase,” Feimer said.
He said they are discussing what changes can be made to address the county’s concerns while securing better services and resources not only for their clients but also for their contract attorneys.
One of several criticisms offered by Sullivan was that while the report talks about problems, it doesn't address actual outcomes for LID clients, who represent more than 95% criminal defendants in Lake County Superior Court.
She said LID’s attorneys have helped Lake County achieve a ranking of 13 highest among California’s 58 counties for the number of case dismissals while being in the bottom third for felony convictions.
Sullivan told Lake County News that the total contract is now $1.8 million annually. She told the board on Tuesday that the cost to have a full public defender’s office is estimated at more than $4 million per year.
She said each individual attorney is an independent contractor and must pay for their office space, bar dues, office supplies and malpractice insurance.
Felony contract attorneys started at a flat monthly fee of $6,500, and the LID administrators then bump up pay for longevity, topping out at $8,750. Realistically, in today's market, Sullivan said it would be difficult to recruit attorneys at that highest contract rate.
Misdemeanors contract attorneys started out at $5,000, and received increases for longevity, topping at $6,250, Sullivan said.
Two of the 6AC recommendations are in line with the county’s past practices when it comes to indigent defense services.
The county has a Public Defender Oversight Committee, but it hasn’t met since 2018. Before that, it had been very active for years.
Sullivan said that committee met at least twice after LID took over the contract. She said it was the county’s committee. “For reasons that are not entirely clear to me, it stopped at about 2018.”
The County Administrative Office did not provide a definitive answer to Lake County News’ questions about why those meetings stopped.
The county also previously had a public defender’s office in the early 1980s. One of the attorneys hired to work in that office was Richard Martin, later a Superior Court judge. He told Lake County News in a 2017 interview that the office had been located in what is now the Historic Courthouse Museum in downtown Lakeport.
Kelly Cox, who retired in 2012 after three decades as Lake County’s administrative officer, confirmed that the public defender’s office had been established in the early 1980s and that Martin had been hired to work there shortly after it was established.
“It was eliminated just a couple of years later due to high costs,” Cox said. “Because the in-house attorneys declared so many conflicts, the county still had to utilize a lot of outside appointed counsel.”
Cox continued, “The whole reason the department was established was to avoid appointment of outside counsel, but that never really happened so the county ended up spending twice as much on public defender services. There was no sign that would change so the in-house department was eliminated in favor of contracts with individual attorneys who operated independently and didn’t have as many conflicts. Eventually the county transitioned to a master contract system, which is still in effect. It saved hundreds of thousands of dollars per year.”
Returning to that model is what the 6AC report suggests. Feimer said the nonprofit’s other reports usually suggest creating a statutory public defender’s office.
“That’s not really an action that’s in the cards budgetarily right now,” he said, although Feimer acknowledged that there are issues to be addressed, including the caseloads and salaries of attorneys who work for LID, and the need for at least two more attorneys. He said they recently lost a very good attorney to Mendocino County, which has better pay and benefits.
One of the challenges has been that as their caseloads have grown, the contracting attorneys haven’t been able to pursue as many outside cases as they are allowed to do. That flexibility has been used as a benefit, but increasingly they are treated like they are full-time and exclusive to the contract, and little accommodation is given by the courts to their outside commitments, Feimer said.
Despite the challenges with pay and workload, Sullivan said LID’s turnover has been relatively low and very stable, and the people they’ve recruited have become very successful in Lake County.
Supervisors consider report
During a Tuesday morning discussion, County Administrative Officer Susan Parker introduced the report and went over its key findings and recommendations with the Board of Supervisors.
Parker said there has been a failure to manage the contract. In her opinion, she said that failure fell within the responsibility of the county administration, but she later clarified that it was a failure of capacity and knowledge on how to manage such a contract.
Sullivan and Feimer were on hand to address their concerns with the report, including mistakes such as a statement that two felony defenders have no criminal experience, which Sulivan said is “blatantly not true.”
They also questioned 6AC’s conclusion that LID paying its subcontractors a monthly flat fee results “in a system-wide conflict of interest between each and every indigent person’s interest in their constitutionally guaranteed right to effective representation and the personal financial interest of the attorney appointed to represent them, leading to the constructive denial of the right to counsel to some indigent people in Lake County.”
“A flat fee by another name would be a salary,” said Sullivan.
Supervisor Michael Green said he sees a need for “increased oversight and understanding,” adding that he believed it was the responsibility of the state’s Judicial Council and the courts to make sure the system is working appropriately.
Supervisor Bruno Sabatier said he would like to see a recommendation brought back to the board on what oversight looks like and who would be involved.
Sabatier said the county paid for the report’s comments and recommendations. “I don’t think their findings are too far off of what is happening.”
The board reached consensus to direct staff to develop and implement a plan to improve public defender services.
County counsel offers recommendations
Following that discussion, County Counsel Anita Grant and her deputy, Carlos Torrez, offered suggestions on the next steps the county could take in its ongoing review of indigent defense services.
Grant said that the report, more than 100 pages in length, gave barely three pages of recommendations. “Criticism is easy. Constructing improvements is much more difficult.”
Noting that the county has had a public defender oversight committee, Grant suggested it could be more robust and involve people who have been involved in the criminal justice system. She said those individuals could give the board more information on the system in a real and practical way, helping it to understand the challenges and hurdles.
Grant and Torrez also recommended retaining the services of a former public defender to ensure comprehensive provision of indigent services, someone who is on the ground and will roll up their sleeves and get to work.
She said they had a person in mind, a retired public defender who Grant said is one of the most dynamic people she’s ever spoken to.
Later in the discussion, Torrez identified that individual as Jose Varela, the retired chief public defender of Marin County. After he retired in March 2021, he was hailed by the Marin County Bar Association as a “transformational leader.”
Torrez said that the County Counsel’s Office had spoken to Varela during the course of its work over the past several months to explore, at the board’s direction, how to support and improve LID’s services.
He said they had reached out both to active chief public defenders and recently retired chief public defenders because no one would have as much knowledge. Everyone they contacted offered help and suggestions, and wanted to help Lake County do better.
Most helpful of all has been Varela, who held the chief public defender job in Marin County for 16 years before retirement. He now leads trainings, Torrez said.
Torrez said Varela is willing to help the county under a service agreement.
“We don't always know what we don't know. We're county counsel. We handle civil issues all day long but criminal are a different animal and so we only know so much,” said Torrez, adding that it's important that they refer to someone who knows the system.
The County Counsel’s Office also has been in touch with the state public defender’s office, which has been incredibly helpful and helped them with grant opportunities. Altogether, the County Counsel’s Office has received three grants totaling more than $1.3 million, and Torrez said they want to boost the amount of money needed to help the indigent defense program.
“We’re continually having conversations with the state. We’re continually looking at new opportunities for new funding. Ideally, we want to work with our partners in LID because we understand the attorneys at work with them now, they’re going to be our attorneys going forward,” said Torrez.
He said the county wants to support those attorneys and help them do the best they possibly can so that another report like 6AC’s won’t be warranted again.
“No one wants to see their county described like ours was,” he said.
However, he added, “It’s not a surprise,” noting that every report that 6AC does has similar outcomes.”
Torrez said, however, that it makes sense. “There’s a reason we commissioned it. There’s a reason they had the findings that they did. But because of that, we’re all moving in the right direction to help fix it.”
Grant said she and her staff wanted to bring back a list of actions that can be done immediately, as well as longer range goals.
Torrez added that he believed a stronger public defender system will improve the District Attorney’s Office as well.
Sullivan told the board that what the report and county counsel failed to mention is the elephant in the room — that the independent contractor model is what the current system is built on.
If the county wants more direct oversight, at a certain point the subcontractors are going to be employees, and that comes with additional costs, Sullivan said.
“You say you want more oversight, but what does that fundamentally mean?” she asked, explaining that they are paying their subcontractors two-thirds of comparable counties.
Sullivan said they were tiptoeing around the matter when they needed to address it head on.
Grant said the board will have to develop a plan as they get more information, data and reporting. Hopefully, she added, with the assistance of the consultant, they can get an idea of priorities.
Green said he didn’t think the independent contractor model is the right model for public defenders.
While he thanked the LID partners for what they’ve done under the current model, “I think that definitely a pivot is forthcoming, expensive as it might be,” Green said.
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