AN ORDINANCE relating to the selection of providers of and standards for indigent public defense services and amending Ordinance 121501.

WHEREAS, it is a constitutional requirement, a requirement of Chapter 10.101 RCW and a public purpose that each person charged with a crime punishable by incarceration or involved in certain other proceedings that may result in loss of liberty or loss of fundamental rights, be provided with effective legal representation in order to ensure equal justice under law without regard to his or her ability to pay; and

WHEREAS, effective legal representation should be provided consistent with the constitutional requirements of fairness, equal protection, and due process in all cases where the right to counsel attaches; and

WHEREAS, it is the intention of The City of Seattle (the "City"), consistent with Chapter 10.101 RCW and other applicable law, to make such services available in an efficient manner which provides effective representation at reasonable cost to the city; and

WHEREAS, the provision of indigent public defense services by nonprofit service providers helps ensure a client focus by those entrusted with representing indigent persons; and

WHEREAS, a non-profit board of directors is generally representative of the community it serves, and the City Council desires Seattle's public defense program to be representative of the community it serves; and

WHEREAS, the American Bar Association recommends an average of 6 hours per case bringing the optimum number of cases handled by attorney to 275 per year; and

WHEREAS, the King County Bar Indigent Defense Services Task Force developed a 300 case per attorney, per year guideline in 1982; and

WHEREAS, the Seattle City Council adopted Resolution 27696 on September 28, 1987, adopting a framework and schedule for implementing recommendations contained in the 1987 Public Defender Salary and Caseload Review conducted by City Council staff, which report led to a 1989 City Council Budget Intent Statement (attached as Attachment 1 and incorporated herein by reference) establishing a 380 case per-attorney, per-year limit, and conditions leading to those recommendation have not materially changed; and

WHEREAS, the City is guided by the standards referenced in Chapter 10.101 RCW and the American Bar Association's (ABA's) Ten Principles of a Public Defense Delivery System attached as Attachment 2 and incorporated herein by reference; and

WHEREAS, in 2004, the City Council passed Ordinance 121501, stating that public defense agreements shall require caseloads no higher than 380 cases per attorney per year; and

WHEREAS, a 2007 City of Seattle Audit found that the Office of Management and Planning's (OMP's) method of determining attorney caseload is not an accurate measure of workload and can conflict with the City caseload standard of 380 annual cases per attorney specified in Ordinance 121501; and the Auditor further found that in 2005 and 2006, the current primary public defense agency's caseload exceeded the standard established in Ordinance 121501; and

WHEREAS, the Audit also commented on OMP's Request for Proposals process, observing that the Mayor appointed all the members of the 2004 proposal review committee, and recommended that the Executive and City Council should decide whether this Mayoral role provides sufficient independence as outlined in the ABA principles; and

WHEREAS, overall, this 2007 City Audit contains 36 recommendations for improving the City's public defense program, including a recommendation to have a larger secondary public defense agency; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section A. Ordinance 121501 is hereby amended as follows:

Section 1. In order to provide for indigent public defense services in a manner that is free from political influence, Tthe selection of service providers for indigent public defense services and the award of contracts with those providers shall be made by the Director of Executive Administration upon receiving the recommendation of an independent, non-partisan, indigent public defense services proposal review panel or the recommendation(s) of panel member(s). The panel shall be advisory only, and shall have seven members. A quorum shall consist of four members, except as provided elsewhere in this Section 1. The Chair of the City Council Public Safety, Governmental Relations, and Arts Committee shall appoint three members subject to confirmation by the City Council. The Mayor shall appoint three members. The panel as constituted shall appoint a member to fill the seventh position. If, by 15 days after this ordinance takes effect, the appointing authorities have collectively appointed only three panel members, then the three existing panel members shall appoint a fourth member. At any time that the panel has at least four but fewer than seven members, the panel shall make additional appointment(s) as needed to reach seven members. Members thus appointed shall not be subject to City Council confirmation. When appointing members of T this panel, the appointing authorities shall make efforts to include, but shall not be limited to, lawyers with criminal defense experience and/or experience in Seattle Municipal Court, community members with legal expertise as well as those who hold firm the interests of low-income communities.No City officer or employee may be a panel member. Except as provided in Section 46 of this Ordinance, the City shall enter into agreements to provide indigent defense services only with nonprofit corporations formed for the express purpose of providing legal services to persons eligible for representation through a public defense program.

Section 2. The duties of the panel shall be to review, and recommend from among, the proposals submitted in response to the Request for Proposals to provide indigent defense services received from nonprofit corporations formed for the express purpose of providing legal services to persons eligible for representation through a public defense program. In addition to any other materials provided by proposers, the panel shall consider any City Audits of its indigent defense programs; and shall, before the end of the 20082010 defense contract term, review the Washington State Bar Association caseload recommendations and report to the City Council on any need to amend the caseload standards in this ordinance.

Section 23. The City Council intends to review and consider any recommendation from the panel for new caseload standards, and may adopt new standards, partly in response to such a recommendation. Until such time as the City Council adopts by ordinance new caseload standards,Tthe City hereby reaffirms the caseload standards established in the 1989 Budget Intent Statement. The 1989 Budget Intent Statement, the American Bar Association's Ten Principles of a Public Defense Delivery System and the provisions of Sections 1, 2 and 3 of this Ordinance shall collectively constitute "standards for public defense services" as that term is used in RCW 10.101.030 until such time as the City Council may by ordinance adjust those standards. Consistent with the 1989 Budget Intent Statement, City agreements with indigent public defense service providers shall require caseloads no higher than 380 total assigned cases per-attorney per-year. The City also affirms the Washington State Barendorsed supervision standard of one full-time supervisor for every ten staff lawyers.

Section 34. The Council intends that A any new standards for public defense services established by ordinance as contemplated by RCW 10.101.030 relating to "compensation of counsel, duties and responsibilities of counsel, case load limits and types of cases, responsibility for expert witness fees and other costs associated with representation, administrative expenses, support services, reports of attorney activity and vouchers, training, supervision, monitoring and evaluation of attorneys, substitution of attorneys or assignment of contracts, limitations on private practice of contract attorneys, qualifications of attorneys, disposition of client complaints, cause for termination of contract or removal of attorney, and nondiscrimination," shall be the outcome of a comprehensive review that involves the Executive, the City Council, Public Defenders, Law School faculty, and King County Bar Association, and non-profit community service providers, in addition to the panel.

Section 45. Upon receiving the recommendations of the panel or panel member(s),Tthe Director of Executive Administration shall negotiate the terms of each proposed agreement with a each service provider for indigent public defense services consistent with the standards adopted in Section 23 of this Ordinance and consistent with the provisions of Sections 1 and 2of this Ordinance. The Director of Executive Administration may execute agreements for that purpose not exceeding three years, provided that no agreement to provide indigent public defense services shall be executed or become effective unless and until approved by the City Council, by ordinance.

Section 56. The contracts with each of the primary and secondary providers selected to provide indigent public defense services shall each provide sufficient funding to support at least two attorneys more than the number of Seattle Municipal Court "departments" provided by law. A third agency shall be selected to represent defendants in those cases in which both the primary and secondary providers have a conflict of interest; the contract with the third agency shall require caseloads no higher than 275 total assigned cases per-attorney per-year. One of the three contracts shall also include the administration of an assigned counsel services program forIn cases or other proceedings where conflicts of interest or other special circumstances exist , at the three contracting agencies. Tthe Citywill pay directly (not via any of the three contracting agencies) for may provide forassigned counsel services provided by persons or entities other than nonprofit corporations.

Section 7. The City Council requests the Seattle City Auditor to audit compliance in the first quarter of 2010 with the standards established by this ordinance for the public defense contract enacted for the 2008 2010 period.

Section B. This ordinance shall take effect and be in force thirty (30) days from and after its approval by the Mayor, but if not approved and returned by the Mayor within ten (10) days after presentation, it shall take effect as provided by Municipal Code Section 1.04.020.

Passed by the City Council the ____ day of _________, 2007, and signed by me in open session in authentication of its passage this _____ day of __________, 2007. _________________________________ President __________of the City Council

Approved by me this ____ day of _________, 2007. _________________________________ Gregory J. Nickels, Mayor

Filed by me this ____ day of _________, 2007. ____________________________________ City Clerk

Attachment 1: 1989 City Council Budget Intent Statement

Attachment 1 is a 59 KB PDF document, requiring Adobe Acrobat or equivalent program to view.

Attachment 2: American Bar Association's Ten Principles of a Public Defense Delivery System

Attachment 2 is a 376 KB PDF document, requiring Adobe Acrobat or equivalent program to view.

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