In February, Seattle Weekly's Nina Shapiro wrote about Kevin Dolan, a veteran public defender with the Associated Counsel for the Accused (ACA). Dolan filed a lawsuit on behalf of all public defenders, arguing that - despite the fact King County has a long history of utilizing independent nonprofit public-defense agencies - these lawyers, who at the time the lawsuit was filed didn't receive the same pension benefits as actual county employees, deserved them nonetheless. In late 2011 the state Supreme Court agreed.
As noted late last week by the Seattle Times, King County is now "pushing a plan that would dissolve the independent agencies and make public defenders county employees," despite the fact King's history of utilizing four separate nonprofit agencies to handle its public defense needs has worked well and been applauded. This decision comes is in large part because of Dolan's lawsuit and the Supreme Court decision that followed it, and it's a shakeup not everyone is thrilled with.
This week as part of The Daily Weekly series "The Horse's Mouth," we chat with Dolan via email about the planned change and what it may mean for public defenders like him.
Seattle Weekly: Do you think getting rid of all the independent agencies and having defenders work for the county is a good idea? How do you feel about having filed your lawsuit given that this may be the outcome? Are any of your colleagues upset?
First, none of the agencies in the King County defense system have been or are now "independent" or "independent contractors". The Supreme Court held that the county over the years since the creation of the agencies "has gradually extended its right of control over the defender organizations until they indeed have become vassal agencies of the county."
The court recognized several factors showing that the agencies were not independent contractors:
May have clients who pay for services.
Can only handle County cases; County provides 100 percent of all funding; agency cannot handle any cases other than County cases.
Can bid for and negotiate contracts
No negotiation. Contracts are merely part of County' budgeting process; contracts are take it or leave it. If contract is not accepted, defender agency goes out of business entirely since it has no other clients than the County.
May lease space or acquire property without approval.
Defenders may not lease or acquire property without county approval; County asserts that property owned by defender organizations belongs to County.
Customers don't establish a pay scale for independent contract employees.
County established pay scale for all defender employees.
Customers don't require independent contractors to give their employees the same cost of living increases that the customer's employees receive.
County requires defender organizations to give same cost of living increases as received by all other King County employees.
The Court further stated that "Unlike a true independent contractor, the County inserted a "termination at will" clause in all contracts, which effectively gave the county the power to terminate the existence of any or all of the organizations at its slightest displeasure". And "Government cannot create an agency to perform a government function, incorporate it into its yearly budget process and control it like any other government agency, and claim it is an independent contractor simply because of the form of name or title.""Perhaps because King County required the defender organizations to give the appearance of being private, the County is arguing the employees cannot now claim to be public employees. But it is difficult to understand how the County relied on their private status, or what else the employees should have done. Moreover, accepting the County's argument would elevate form over substance".
The Supreme Court concluded that King County has exerted such a right of control over the defender organizations as to make them agencies of the county, and held that all the employees of the defender organizations are employees of the County for purposes of PERS retirement under the government's Public Employees Retirement System.
As you can see, the idea that the public defenders were ever truly independent was and is untrue. In fact, the agencies were always a de facto agency of the County-The County just didn't want to treat them as such because it would then have been responsible to pay them the same salaries as the prosecutor office (salaries for defenders and staff average $20,000 lower than prosecution); retirement(the County paid retirement for prosecutors and all other employees and paid none for defenders because they were "independent contractors") and the same health benefits (the County pays no benefits of any kind to defenders).
Since the 1980's at least 4 different studies commissioned by the County have recommended that defenders be made an actual agency of the County and taken "in house". Each time the County rejected the recommendations, mainly because of the costs they would incur.
I filed the lawsuit in 2004 because I believed that public defenders in King County should be treated the same as the prosecutors in King County, with the same retirement, benefits, and wages. I believed then and believe now that it is fundamentally unfair to treat defenders as second class citizens.
The decision of the County to institute a formal King County Public Defense agency is long overdue and will end the threadbare pretense that defenders are truly independent contractors and not public employees entitled to the same protections and benefits as all other King County employees.
How do you think people are going to get along and unify into one group?
The County doesn't have to lump all defenders into one group. They can keep the various existing agency structure and designate them as departments or sub-groups within the defense agency, so long as all employees are part of the public defender agency itself. Assuming that the County doesn't want to keep the current structure, I believe that the most logical and realistic way to create a single organization is:
A: Declare that the head of the Office of Public Defense is now in direct control of all defender agencies, which are all now part of the King County Public Defender.
B. Do an implementation study to determine (based on experience level) the appropriate salary level of defense counsel commensurate with prosecutors at that pay level. This study should take no more than 6 months and then should be implemented.
C. Analyze and integrate county benefits for defenders. Same time period.
D. Plan for an integration of all defender agencies into one unit. This will require decisions as to current agency leases (most are locked into long term leases for space); finding a building large enough for such a unit (currently the County has no such buildings available); determine the structure of the unit; and finally place defense attorneys and staff into appropriate subdivisions(juvenile court, superior court, dependencies, etc.) The plan and integration is difficult for a number of reasons, but can be ophased in over a period of 12-24 months.
I don't forsee any real problems integrating attorneys from the various current agencies into one unit. The real problem will be a headlong rush by the County into creation of a single unit without taking the time to carefully work through all the practical problems.
Do you have another outcome you'd prefer to see? Is there any chance of that? What do you see as the county's motivation here?
A King County Public Defender is the logical outcome of the lawsuit. Remember, five counties of Washington have public defense agencies which have always been county agencies-including some of the biggest counties: Spokane, Whatcom, Pierce, Yakima, and Thurston. The defense lawyers in those counties have never had a problem being "independent" and providing quality representation for their client. Neither will we.
I believe the County, after fighting this lawsuit for 8 years and finally losing 3 times at every court level, is finally recognizing reality. From their perspective, it makes no sense to have 4 agencies, or to contract with those agencies, when they are not independent contractors but in reality county employees. It makes sense for them to have one large agency and treat their budget, retirement, wages, and benefits exactly as they treat the prosecutor's office.
EXTRA CREDIT: Are you worried about your job?
No. The number of cases (over 30,000 per year) which are currently handled by defense are not going to diminish or disappear. It is in the interest of King County to have a knowledgeable, experienced and dedicated agency of defense counsel to provide the best defense possible to those who cannot afford private counsel. (And since private lawyers charge anywhere from $10,000 for a DUI and $100,000 for felonies, most of us can't afford one).