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HomeMy WebLinkAboutR-1992-D6226 Glen Warren / Public Defender• • RESOLUTION NO D 6226 A RESOLUTION authorizing the execution of a public defender contract for 1993 WHEREAS, the City of Yakima criminally prosecutes persons for violations of City ordinances in the Yakima County District Court; and WHEREAS, the City Council directed the City's Purchasing Agent to conduct a request for proposal process in order to secure public defender services for the calendar year 1993 all in accordance with specifications designed to provide public defender service to indigent persons within acceptable constitutional standards; and WHEREAS, in response to the request for proposal process, the two lowest acceptable proposals for 1993 are: Glen Warren at $64,937.00 and Roy and Pell at 592,000 00; and WHEREAS, the City Council must secure defender services before the end of 1992 for 1993, and WHEREAS, the City Counc desires to contract with Glen Warren at the stated price, however, the City Council finds and declares that the execution and performance of such a contract with Glen Warren would be in violation of Article VI, Section 5 of the City Charter because his spouse is employed by the City; and WHEREAS, the City Council understands that Glen Warren has or will challenge such finding in a Yakima County Superior Court declaratory judgment action, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and City Clerk are hereby authorized and directed to execute the attached and incorporated City of Yakima Public Defender Agreement for 1993 with Glen Warren prior to December 29, 1992 in the event of a ruling by a court of competent jurisdiction that City Charter Article VI, Section 5 would not be violated by execution and performance of said agreement; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: In the event of an adverse ruling to Glen Warren in the above -referenced litigation or in the event of no court ruling settling the issue of violation of Charter Article VI, Section 5, prior to December 29, 1992, the City Manager and City Clerk are hereby authorized and directed to execute the attached Page -1 (1s)res/pubdefender jv and incorporated City of Yakima Public Defender Agreement for 1993 with the law firm of Roy and Pell. ADOPTED BY THE CITY COUNCIL thisl6 { day of , 1992 .1/Lvtell—. ATTEST Mayor ‘KaAs-,.._ City Clerk Page -2 (1s)res/pubdefender jv • • CITY OF YAKIMA PUBLIC DEFENDER AGREEMENT FOR 1993 THIS AGREEMENT, made and entered into this oVaay of bc,,,. ev; 1992, by and between GLEN P. WARREN of Yakima, Washington as the Public Defender, and the City of Yakima, hereinafter referred to as the City. WITNESSETH: WHEREAS, the Public Defender is an attorney licensed to practice law in the State of Washington, with offices at 905 Larson Building, Yakima, Washington 98901; and WHEREAS, the parties hereto are desirous of effectuating an agreement whereby the Public Defender will provide legal services for indigents and other eligible persons in the Yakima County District Court and its various departments; now, therefore, IT IS HEREBY mutually agreed as follows: 1. The Public Defender shall provide defense attorney services for all indigent defendants charged with violating Yakima City ordinances in the Yakima County District Court which are punishable by incarceration in the Yakima County Jail. Such services shall include legal representations at all stages of the proceedings including, but not limited to, representation at the time of plea, change of plea, pre-trial motions, pre-trial conferences at court, jury and non - jury trials, post -trial motions, sentencings, probation revocation hearings, sentence reviews, all proceedings in connection with deferred prosecutions, competency hearings, and perfection of appeals and/or reviews to the Superior Court, including representation on all stages of review or appeal to higher courts, appellate representation by appointment at any stage of appellate proceeding shall be the responsibility of the City Public Defender. Court appearances during arraignments shall also be required as may be directed from time to time by the District Court. 2. Public Defender services must be performed on all court days, and a defense attorney must be available by telephone 24 hours a day, seven days a week, for each week of the year in order to give legal advice to persons who are in custody on such charges. 3. The Public Defender must provide a sufficient number of other defense attorneys to provide the services generally described in this agreement so that all indigent defendants for whom defense counsel is appointed by the court will be adequately represented. Such attorney shall be admitted to practice in Washington. At a minimum, the Public Defender shall provide one full-time and one half-time public defense attorney or three half-time public defenders inclusive of Mr. Warren. Such attorney may engage in private practice so long as it does not diminish the kind and quality of service required by this agreement. The Public Defender and such defense attorneys as he may provide shall each fulfill their annual Washington State Bar Association continuing legal education requirement. Page 1 of 4 agr/pubdefender.sw 4. In the event that representation of a defendant creates a conflict of interest such that the Public Defender cannot represent the defendant, the Public Defender shall be responsible for the referral of the defendant to outside counsel at its sole expense. The City shall approve any sub -contracts for outside counsel services; such approval shall not be unreasonably withheld. 5. The City and District Court reserve the right at any time to reject services of any or all attorneys proposed by the Public Defender. All attorneys proposed to provide services must be approved prior to performing services pursuant to this agreement by the City and the Judges of the Yakima County District Court. 6. All attorneys performing services pursuant to this agreement must carry and show proof of malpractice insurance in an amount agreeable to the City Prosecutor. Said insurance coverage shall be in effect throughout the term of this agreement. Should such coverage be terminated for any reason, the services of the attorney affected shall cease immediately. 7. The Public Defender shall generally function as follows: a. Receive notices of appointment for indigent defendants each court day. b. Set up and maintain files on each defendant. c. Notify each defendant of the appointment of counsel, the name of the attorney to whom the case is assigned, and the manner and method the defendant is to use to contact the assigned attorney. d. Provide office space for the interviewing of defendants and witnesses. e. Provide supplies, postage, equipment, and telephone facilities to adequately carry on the responsibilities of the City of Yakima Public Defender. f. Provide office support staff to perform the functions of the City of Yakima Public Defender. g. Timely interview defendants in custody. h. At least four weeks in advance of trial periodically review with the City Prosecutor the case files in order to determine what agreements may be reached as to witnesses, evidence, trial, or sentence recommendations. i. Provide training, supervision, and monitoring of attorneys who act as his employees, subcontractors, or agents in the performance of this contract. j. Provide a means suitable to the City Prosecutor for the disposition of complaints against the Public Defender and his public defense attorneys. Page 2 of 4 agr/pubdefender.sw 8. The term of this agreement shall be from January 1, 1993 to January 1, 1994. Any residual caseload shall be negotiated. 9. In return for the above -enumerated services, the Public Defender shall receive compensation in a total amount of Sixty -Four Thousand, Nine Hundred Thirty -Seven Dollars and Fifty Cents ($64,937.50) for the year 1993. All compensation shall be payable in equal monthly installments upon proper voucher for the same, submitted by the Public Defender and received by the Director of Finance and Budget at City Hall, Yakima, Washington. The City shall, in addition, compensate the Public Defender for all expert witness fees incurred by him on behalf of indigent clients covered by this agreement upon application and approval of the court. 10. The Public Defender shall not assign, transfer, or subcontract this agreement without obtaining prior written approval from the City. 11. The Public Defender will provide the aforementioned services in conformity with the canons of Professional Ethics and will provide the District Court and City with any reports, fiscal or otherwise, which are reasonably required in the performance of the District Court's and the City's responsibilities. An annual report shall be provided by the Public Defender on a form provided by the City Prosecutor. 12. The parties agree that the Public Defender is an independent contractor with the responsibility and authority to control and direct the performance of the details of the work described herein, in accordance with the terms and conditions of this agreement. The implementation of contracted activities and the results to be achieved are solely the responsibility of the Public Defender. No agent, employee, subcontractor, or representative of the Public Defender shall be deemed to be an employee, agent, servant, or representative of the City or District Court for any purpose, and the employees, agents, subcontractor, or representative of the Public Defender are not entitled to any of the benefits the City provides for its employees. The Public Defender will be solely and entirely responsible for his acts and for the acts of his agents, employees, subcontractors, or otherwise, during the performance of this agreement. 13. The Public Defender hereby agrees to release, indemnify, protect, defend and save harmless the City and Yakima County and their elected and appointed officials, employees, and agents from all claims, actions, or damages of any kind and description which may occur to or be suffered by any person or persons, corporation, or property arising, directly or indirectly, out of the operation of this agreement, caused or contributed thereto by the Public Defender or his employees or subcontractors. Provided, however, that nothing herein shall be deemed to require the Public Defender to indemnify the City or Yakima County or their elected or appointed officials, agents, or employees for injury to persons, corporation, and/or property arising from the sole negligence of the City or Yakima County and their elected or appointed officials, employees, and agents. In case of suit or action brought against the City or County and/or their elected or appointed officials, agents, and employees for damages arising out of or by reason of any of the above-mentioned causes, the Public Defender agrees to pay all costs of defense, including reasonable attorney's fees and any judgment. Page 3 of 4 agr/pubdefender.sw 14. The Public Defender shall not discriminate on the basis of race, creed, color, national origin, or physical, mental, or sensory handicap in the performance of this contract. 15. Either party may terminate this agreement upon 90 days written notice sent by certified mail to the addresses listed in this agreement. The parties shall negotiate a reasonable fee for services to complete client representation which cannot be done through substituted counsel. 16. This agreement has been and shall be construed as having been made and delivered within the State of Washington, and it is mutually understood and agreed to by each party hereto that this agreement shall be governed by the laws of the State of Washington both as to interpretation and performances. Any action at law, suit in equity, or judicial proceeding for the enforcement of this agreement or any provisions thereof, shall be instituted and maintained only in the Superior Court for Yakima County, Yakima, Washington. DATED this .72V -44 -day of ®io , 1992. PUBLIC DEFENDER GLEN P. WARREN Attorney at Law 905 Larson Building Yakima, WA 98901 Page 4 of 4 agr/pubdefender.sw CITY OF YAKIMA R. A. ZAIS, JR. City Manager 129 North 2nd Street Yakima, WA 98901 ATTEST: City Clerk City Contract No. 6 "101 Resolution No. . IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF YAKIMA GLEN P. WARREN and ELIZABETH H. McCARTHY, husband and wife and the community composed thereof, Plaintiffs, vs. CITY OF YAKIMA, a first class municipal corporation, Defendant vs. The Law Firm of ROY and PELL, Intervenor. NO. 92-2-2347-3 MEMORANDUM OPINION The issue before the court is whether a contract between the City of Yakima and Glen Warren to provide public defender services would require the termination of Elizabeth McCarthy's employment pursuant to Yakima City Charter Article VI, Section 5. The Charter provides in pertinent part: No employee of the City shall...derive any benefit, profit or advantage, directly or indirectly from or by reason of ...any contract to which the City shall be a party, except his lawful compensation or salary as...[an] employee. A violation. . .shall disqualify the offender to continue in...employment and he shall be forthwith removed therefrom..." UNDISPUTED FACTS It is undisputed that Glen Warren and Elizabeth McCarthy are -1- �.nZ"1-3,151— married to one another, and live together. They share at least some of their living expenses. Ms. McCarthy is an employee of the City of Yakima. Mr. Warren is an attorney with a private practice. Mr. Warren submitted a proposal to the City of Yakima to provide Public Defender Services in District Court. Other law firms, including the firm of Roy and Pell also submitted proposals. Mr. Warren's proposal was the least expensive. The City of Yakima desires to contract with Mr. Warren, but has resolved to do so only in the event the court declares that the Charter provision does not result in a violation for Ms. McCarthy. In the event of a violation, the City of Yakima has resolved to contract with the law firm of Roy and Pell. Ms. McCarthy has done nothing to encourage the choice of Glen Warren as the public defender by the City Council. POTENTIALLY DISPUTED FACTS The Court designates the following issues as disputed facts" because the intervenor, Roy and Pell, adequate time to complete discovery on these issues, required to be bound by a finding that these facts dispute: Glen Warren and Elizabeth McCarthy entered into an agreement, a copy of which is included in their "potentially did not have and is not are not in antenuptial affidavit. Further, each deposits his or her earnings into separate bank accounts. -2- ANALYSIS OF THE ISSUES PRESENTED 1. CHARACTERIZATION OF PROPERTY ACQUIRED DURING MARRIAGE The plaintiffs argue, and the defendant City of Yakima concurs, that the antenuptial agreement provides that all income earned by each becomes the earner's separate income. As separate property, the plaintiffs argue, income from a city contract with Mr. Warren would not confer any "benefit, profit or advantage, directly or indirectly" on Ms. McCarthy in violation of the charter. On its face, the antenuptial agreement does not specifically state that wages income will be characterized as the separate property of the earner. It does provide that property "purchased with wages" of one person shall be the separate property of that person. It also provides in pertinent part: ...[T]hat the husband's separate property shall be as follows:...L. Law practice and furnishings... It is further understood and agreed that husband shall be entitled to all rents, issues, profits and subsequent increases in valuation of husband's properties herein before listed... The court finds it unnecessary to determine whether the antenuptial agreement establishes that wages and earned income becomes the separate property of the earner. 2. DOES THE CITY CHARTER PROHIBIT THE CITY OF YAKIMA FROM ENTERING INTO A CONTRACT FOR SERVICES WITH GLEN WARREN SO LONG AS ELIZABETH McCARTHY REMAINS EMPLOYED BY THE CITY OF YAKIMA? -3- Would Ms. McCarthy benefit from the contract? The answer is clearly "yes." Is this a violation of the Charter? The Court is compelled to answer this question in the negative. Regardless of whether this married couple's earned income is to be considered community or separate, Mr. Warren and Ms. McCarthy admit they share expenses. By sharing living expenses, Ms. McCarthy benefits from the use of the funds Mr. Warren contributes, as does he benefit from her contribution. If the source of any of these funds is from his income as the contracted public defender, benefits necessarily flow from the contract. The plaintiffs urge the Court to find that no benefit is received by Ms. McCarthy. The Court is persuaded that the minds of reasonable fact finders could not disagree on this point; Ms. McCarthy derives a benefit. The Charter does not prevent the City from contracting with Mr. Warren. The City Council may choose to contract with Mr. Warren. The real issue is whether the Charter must be interpreted so as to compel the termination of Ms. McCarthy's employment if the City of Yakima does contract with Mr. Warren. 3. HOW SHOULD THE CITY OF YAKIMA CHARTER ARTICLE VI, SECTION 5 BE CONSTRUED? It is the Court's duty to construe the Charter reasonably so as to make it purposeful and effective, to ascertain its meaning and not to modify it. It is the function of the court to adopt a construction that is reasonable and in furtherance of the obvious purpose for which it was enacted. Strand v. State Dept. of Motor -4- Vehicles, 8 Wash. App. 877 (1973). It must be given a reasonable construction to avoid absurd consequences. Bellevue Fire Fighters Local 1604, Intern. Ass'n of Fire Fighters, AFL-CIO, CLC v. City of Bellevue, 100 Wash. 2d 748, certiorari denied 105 S.Ct. 2017, 471 U.S. 1015, 85 L.Ed.2d 299 (1984), Metropolitan Services, Inc. v. City of Spokane, 32 Wash. App 714, review denied (1982), State v. Taylor, 30 Wash. App. 844, reversed 97 Wash. 2d 724 (1982). The fundamental guide to statutory construction is that spirit or intention of the law prevails over the letter of the law. Janovich v. Herron, 91 Wash. 2d 767 (1979). A thing within the letter of the law, but not within its spirit, may be held inoperative where it would lead to an absurd conclusion. State ex rel. Public Utility Dist. No. 1 of Skagit County v. Wylie, 28 Wash. 2d 113 (1947). The meaning of the Charter is a question of law, while the question of whether a given activity falls within the Charter provision is a question of fact. The City urges the court to determine that the intent of the Charter is to avoid even the appearance of favor. Such a sweeping interpretation would necessarily result in innocent employees being terminated from employment because of contracting decisions the City Council may make even when the employees were unaware of the potential contract. Under this analysis, if taken to the extreme, an employee would have to be terminated if he or she drove on the newly paved roads constructed by a spouse who is a paving contractor, since the employee benefitted from the use of the road. -5- This Court declares that the Charter is to be interpreted and construed to prohibit employees from taking action, such as influencing the decision makers, so that they would benefit from a contract, e.g., receive a kickback, or receive some preferential treatment. The key language of the Charter which leads the court to this conclusion is: "The violation shall...disqualify the offender to continue in...employment and he shall be forthwith removed therefrom..." (Emphasis added.) Clearly, the intent was to punish offensive behavior. The choice of language was "offender" rather than "employee." Webster's New International Dictionary, Second Edition, defines "offender" and "offend" in relevant part as follows: OFFENDER - n. One who offends; one who violates any law, divine or human; one who commits an offense; a wrongdoer; a transgressor. OFFEND - v. To transgress; to violate. The intent of the Charter is to punish wrongdoers rather than employees who, by means of sheer coincidence, also benefit directly or indirectly from a contract. The Charter goes beyond the related state statute which punishes those who engage in contracts with a resulting personal benefit. The narrower state statute, RCW 42.23.030, places the prohibition on the officer who has the authority to let the contract. The broader language of the city charter places the prohibition or penalty on the employee who may not have the authority to let the contract, but who, nonetheless, has taken some action to be able to benefit from the contract. This serves to expand the purpose of the state statute, to avoid -6- corruption in government. The Charter's prohibitions are placed on employees who benefit from contracts, rather than on the officers who award the contracts. The charter does not say, in effect, "The city shall not contract with any person if an employee of the city would derive any benefit, profit or advantage, directly or indirectly, from or by reason of such contract." To construe the City Charter so that innocent employees would be punished would provide an anomaly in the law: punishment of innocent people. An innocent employee is penalized, through termination, for the decisions of officers to let a contract, even when the employee had nothing whatsoever to do with the decision to contract. An employee should not be compelled to lobby against the approval of a contract just to protect his or her job. Indeed, to create such a situation would cause employees to benefit by retaining their jobs by acting to influence the decision to award contracts. Such self-serving activity was not intended by the Charter. Further, it is clearly a strong public policy of this state to foster and protect the institution of marriage. Imposing a penalty on innocent employees who derive a benefit by virtue of marriage would discourage those who contemplate marriage, and would encourage married couples to divorce to maintain employment. An interpretation of the Charter with this result is repugnant to society. Within the institution of marriage, Washington public policy -7- strongly favors the mutual benefits derived from community property. To construe the Charter in a way that compels married couples to convert community property to separate property is also repugnant. CONCLUSION It is undisputed that Ms. McCarthy took no action to encourage the City Council to contract with Glen Warren. Ms. McCarthy unquestionably will benefit, at least indirectly, from a contract. She is not an "offender" as is contemplated by Yakima City Charter Article VI, Section 5. She is an "innocent employee." The City of Yakima Charter should be interpreted to allow the City to ferret out and punish people in city government who are corrupt, while protecting innocent employees. Thus, under the facts of this case, Ms. McCarthy's continued employment would not be prohibited even if the City of Yakima contracts with Mr. Warren. The Plaintiffs' motion for summary judgment declaring that there would be no violation of the City Charter is granted. Done this 22nd day of December, 1992. HEATHER K. VAN NUYS, Judge