HomeMy WebLinkAboutR-2011-115 Public Defender Agreement with Richard GillilandRESOLUTION NO. R-2011-115
A RESOLUTION authorizing and directing the City Manager and City Clerk to execute the
Public Defender Agreement with Richard Gilliland.
WHEREAS, the City of Yakima is mandated by the State to provide representation for
indigent criminal defendants; and
WHEREAS, the City Manager, under authority granted by the City Council, negotiated
the Public Defender Agreement; and
WHEREAS, as a result of these negotiations, the public defender agreed to perform
public defender services in 2011 and 2012 for $80,000.00; and
WHEREAS, the City Council has determined that the proposed Public Defender
Agreement for these years is in the best interests of the City of Yakima; 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 a City of
Yakima Public Defender Agreement with Richard Gilliland, final form of agreement to be
approved by the City Attorney. ,
ADOPTED BY THE CITY COUNCIL this 5th day of July, 2011.
ATTEST
Pkeet,4—
City Clerk
(ke)res/public defender agrmt
Micah Cawle', Mayor
CITY OF YAKIMA
PUBLIC DEFENDER AGREEMENT
THIS AGREEMENT, made and entered into this (0 day ofa1
2011, by and between Richard D. Gilliland, of Yakima, Washingtonreinafter
the "Public Defender", and the CITY OF YAKIMA, a municipal corporation,
hereinafter referred to as the "City."
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WHEREAS, the Public Defender is an attorney licensed to practice law in
the State of Washington, with offices at 808 Pickens Road, Yakima, WA 98908.
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 Municipal Court and its various departments; now,
therefore,
IT IS HEREBY mutually agreed as follows:
1. Duties. The Public Defender shall provide high quality defense
attorney services for indigent defendants charged 'with misdemeanor and gross
misdemeanor allegations occurring within the City of Yakima and processed by
the City of Yakima Municipal Court. The specific cases for which the Public
Defender will be responsible will vary, but will be allocated by assignment by the
Court of cases to the Public Defender approximately one docket day per week.
This assignment of cases is expected to equate to approximately 30 to 40 cases
(which includes both new and old cases) on the Public Defender's assigned
docket day each week. Case assignments will be generated out of the Public
Defender's obligated docket day once per week but the Public Defender's duties
shall be fulfilled as required by the Court and by the Public Defender's
professional obligation to his or her clients, which may extend to court
appearances and other duties any day of the week. Such services shall include
legal representations at all stages of the proceedings, including, but not limited
to, representation at the time of arraignment or other initial court appearance for
all indigent in -custody defendants, plea, change of plea, pre-trial motions, pre-
trial conferences at court, jury and non -jury trials, post -trial motions, sentencings,
probation revocation hearings, all proceedings in connection with deferred
prosecutions, and competency hearings, all of which shall be the responsibility of
the Public Defender. The Public Defender's duties shall not extend to appeals.
2. ` Public Defender Availability. Public Defender services may be
required on all court dockets and a defense attorney must be available by
telephone 24 hours a day, seven (7) days a week, for each week of the year in
order to give legal advice to persons who are in custody on charges filed in
Yakima Municipal Court.
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3. Duty in Case of Conflict. In the event that representation of a
defendant creates a conflict of interest such that the assigned Public Defender
cannot represent the defendant, the Public Defender shall immediately inform the
Court so that the case may be transferred to another Public Defender.
4. Insurance. Without limiting the Public Defender's indemnification, it
is agreed that the Public Defender shall maintain in force, at all times during the
term of this Agreement, a policy or policies of insurance covering its operation as
described below.
A. General Liability Insurance
The Public Defender shall maintain continuously public liability insurance with
limits of liability not less than One Million Dollars ($1,000,000) for each
occurrence, personal injury, and/or property damage liability.
Such insurance policy or policies shall specifically name the City, its elected
and appointed officials, employees, volunteers, and agents as additional
insureds. Said insurance coverage shall be primary insurance with respect to
the City, and any insurance, regardless of the form, maintained by the City
shall be in excess of any insurance coverage which the Public Defender is
required to maintain pursuant to this Agreement.
The Public Defender shall provide a certificate of insurance or, upon written
request of the City of Yakima, a duplicate of the policy as evidence of
insurance protection. The Public Defender shall immediately notify the City of
any communication with their insurance provider canceling or threatening to
cancel insurance coverage under this provision.
B. Professional Liability Insurance
The Public Defender shall maintain or ensure that its professional employees
maintain professional liability insurance for any and all acts which occur
during the course of their employment with the Public Defender which
constitute professional services in the performance of this Agreement. For
purposes of this Agreement, professional services shall mean any services
provided by a licensed professional.
Such professional liability insurance shall be maintained in an amount not less
than One Million Dollars ($1,000,000) combined single limit per
claim/aggregate. The Public Defender further agrees that it shall have sole
and full responsibility for the payment of any funds where such payments are
occasioned solely by the professional negligence of its professional
employees and where such payments are not covered by any professional
liability insurance, including but not limited to the amount of the deductible
under the insurance policy. The Public Defender shall not be required to
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make any payments for professional liability, if such liability is occasioned by
the sole negligence of the City. The Public Defender shall not be required to
make payments other than its judicially determined percentage, for any
professional liability which is determined by a court of competent jurisdiction
to be the result of the comparative negligence of the Public Defender and the
City.
Such insurance shall not be reduced or canceled without thirty (30) days' prior
written notice to the City. If such insurance is obtained on a "claims made"
basis, the Public Defender will continue to carry coverage for not less than
three (3) years after expiration of this Agreement, and will provide a certificate
in form and content satisfactory to the City demonstrating such continuing
coverage. The Public Defender shall provide certificates of insurance or,
upon written request of the City, duplicates of the policies as evidence of
insurance protection.
C. Automobile Insurance
The Public Defender shall maintain in force at all times during the term of this
Agreement a policy or policies of insurance covering any automobiles owned,
leased, hired, borrowed or used by any employee, agent, subcontractor or
designee of the Public Defender to transport clients pursuant to this
agreement with the City.
Such insurance policy or policies shall specifically name the City, its elected
and appointed officials, employees, volunteers, and agents as additional
insureds. Said insurance coverage shall be primary insurance with respect to
the City, and any insurance, regardless of the form, maintained by the City
shall be in excess of any insurance coverage which the Public Defender is
required to maintain pursuant to this Agreement.
Automobile liability coverage as stated herein shall be maintained at One
Million Dollars ($1,000,000) combined single limit per accident for bodily injury
and property damage.
D. Workers' Compensation
The Public Defender shall maintain Workers' Compensation coverage as
required by law. The Public Defender shall provide a certificate of insurance
or, upon written request of the City, a certified copy of the policy as evidence
of insurance protection.
5. Specific Duties. The Public Defender shall provide services
necessary or incidental to the performance of the work set forth in the PUBLIC
DEFENDER - STATEMENT OF WORK - EXHIBIT A and consistent with CLIENT
REPRESENTATION PRACTICE GUIDELINES- Exhibit B. The Public Defender
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acknowledges and agrees that the City may make changes to the specific duties
of the Public Defender as necessary to maintain conformity with the Washington
State Rules of Professional Conduct as well as case law and applicable court
rules defining the duties of counsel and the rights of defendants in criminal
cases. No such changes will be grounds for additional or revised compensation
under this Agreement, unless the Public Defender demonstrates to the City's
reasonable satisfaction that the change imposes an undue burden on the Public
Defender's ability to provide the services required under this Agreement.
6. Term and Renegotiation. This Agreement shall commence on the
date of last signature and terminate 24 months thereafter, unless extended or
sooner terminated as provided herein. The period of performance may also be
extended by mutual written agreement of the parties. Should the Public
Defender elect to re -negotiate this Agreement for an additional term, he or she
shall submit a proposal for compensation for additional service at least 30 days
before the expiration date.
7. Compensation. In return for the above -enumerated services, the
Public Defender shall receive compensation in a total fixed -fee amount as
follows:
Monthly — six thousand six hundred sixty-six dollars ($6,666.00) per month
(provided that payment for the first month of this Agreement shall be prorated
depending upon the actual date of final mutual acceptance), for a total of
eighty thousand dollars ($80,000.00) per year, payable in equal monthly
installments.
Payments shall be made 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. All vouchers shall be submitted to:
City of Yakima Accounts Receivable
129 No. 2nd Street
Yakima, WA 98901
8. Expert Witnesses. The City shall, in addition, compensate the
Public Defender for all expert witness fees incurred by the Public Defender on
behalf of indigent clients covered by this Agreement upon application and
approval of the Court.
9. Assignment. The Public Defender shall not assign, transfer, or
subcontract this Agreement except for illness, vacation or occasional conflicts
with prior written consent from the City, provided such consent is reasonably
attainable.
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10. Successors Bound. Subject to the provisions of Section 11, this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their successors, and assigns.
11. Ethic Compliance, Reports, and Training. The Public Defender
will provide the aforementioned services in conformity with all applicable Rules of
Professional Conduct and will provide the Municipal Court and the City with any
reports, fiscal or otherwise, which are reasonably required in the performance of
the Municipal Court's and the City's responsibilities. An annual report shall be
provided by the Public Defender on a form approved by the City Manager on or
before August 1 of each year. The report must include a statement of hours
billed for nonpublic defense legal services in the previous calendar year,
including number and types of private cases, as the same may be required by
RCW 10.101.050, as now exists or may be subsequently amended. The Public
Defender agrees to attend training approved by the Washington Office of Public
Defense at least once per calendar year, as the same may be required by RCW
10.101.050 and 10.101.060, as now exist or may be subsequently amended.
12. Taxes and Assessments. The Public Defender shall be solely
responsible for compensating its employees and for paying all related taxes,
deductions, and assessments, including but not limited to, leasehold excise
taxes, federal income tax, FICA, social security tax, assessments for
unemployment and industrial injury, and other deductions from income which
may be required by law or assessed against either party as a result of this
Agreement. In the event the City is assessed a tax or assessment as a result of
this Agreement, the Public Defender shall pay the same before it becomes due
and indemnify and hold the City harmless from any liability arising out of the
same.
13. Independent Contractor. 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 of the City of Yakima Municipal Court for
any purpose, and the employees, agents, subcontractors, or representatives 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 or
her acts and for the acts of his or her agents, employees, subcontractors, or
otherwise, during the performance of this Agreement.
14. Indemnity. The Public Defender hereby agrees to release,
indemnify, protect, defend and save harmless the City and its elected and
appointed officials, employees, volunteers, and agents from all claims, actions, or
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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 or her employees or subcontractors. Provided, however, that
nothing herein shall be deemed to require the Public Defender to indemnify the
City or its elected or appointed officials, agents, volunteers, or employees for
injury to persons, corporation, and/or property arising from and to the extent
attributable to the negligence of the City and its elected or appointed officials,
employees, volunteers, and agents. In case of suit or action brought against the
City and/or its elected or appointed officials, agents, volunteers, or employees for
damages arising out of or by reason of acts of the Public Defender, the Public
Defender agrees to pay all costs of defense, including reasonable attorney's
fees, and any judgment resulting there from.
15. Non discrimination. 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 Agreement.
16. Termination. Either party may terminate this Agreement, with or
without cause, upon ninety (90) days' written notice sent by certified mail. The
City shall send notice to the Public Defender at the address listed in this
Agreement. The Public Defender shall send notice to the City Manager. The
parties shall negotiate a reasonable fee for services to complete client
representation which cannot be done through substituted counsel.
17. Governing Law. 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.
18. Venue. 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
19. Integration. It is understood and agreed that all understandings and
agreements, whether written or oral, heretofore had between the parties hereto
are merged in this Agreement, which alone fully and completely expresses their
agreement, that neither party is relying upon any statement or representation not
embodied in this Agreement, made by the other, and that this Agreement may
not be changed except by an instrument in writing signed by both parties.
20. Waiver of Breach. A waiver by either party hereto of a breach of the
other party hereto of any covenant or condition of this Agreement shall not impair
the right of the party not in default to avail itself of any subsequent breach
thereof. Leniency, delay or failure of either party to insist upon strict performance
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of any agreement, covenant or condition of this Agreement, or to exercise any
right herein given in any one or more instances, shall not be construed as a
waiver or relinquishment of any such agreement, covenant, condition or right.
DATED this 6 day of `Jk< , 2011.
CITY OF YAKIMA
By:
Michael A. Morales
City Manager
129 North 2nd Street
Yakima, WA 98902
ATTEST:
PUBLIC DEFENDER
By:
City Contract No. .Q0/1-61 r
Resolution No.
Page 7of11
Richard D.`Eilliland
Attorney At Law
808 Pickens Road
Yakima, Wa 98908
EXHIBIT A
PUBLIC DEFENSE STATEMENT OF WORK
1. PUBLIC DEFENDER CONTRACTOR DUTIES AND RESPONSIBILITIES
— The Public Defender shall provide high quality indigent defense
representation in the cases assigned to it by the Yakima Municipal Court.
The representation shall be consistent with EXHIBIT B, CLIENT
REPRESENTATION PRACTICE GUIDELINES, as set forth below, and
with the City's adopted standards for the delivery of public defense
services. The representation shall be provided in a professional and
skilled manner and shall be in compliance with the Washington State
Rules of Professional Conduct as well as case law and applicable court
rules defining the duties of counsel and the rights of defendants in criminal
cases. The Public Defender's primary and most fundamental
responsibility is to promote and protect the best interests of the client.
2. TASKS — The Public Defender shall perform the following tasks with
regard to each case to which the Public Defender is appointed.
A. Maintain a law office with a suitable client interview facility. The
Public Defender will provide adequate phone lines, computers,
postage, office equipment, office supplies, office furniture and legal
research tools to maintain a smooth -running and efficient law office.
B. Receive notices of appointment for indigent defendants each court
day. Set up and maintain files on each assigned defendant.
C. Establish and maintain client contact, keep the client informed of
the progress of the case, and effectively provide legal advice to the
client throughout the representation.
D. Timely interview defendants in custody anywhere in Yakima
County.
E. Meet at least weekly with the Assigned Prosecutor to discuss
pending matters.
F. Maintain continuity of representation at all stages of a case,
including attendance at all first appearance proceedings, such as
arraignments, as is reasonably possible, for in -custody defendants.
Except for illness, vacation or occasional conflicts, the assigned
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Public Defender shall appear at all Municipal Court hearings with
their clients.
G. Each full time attorney shall devote at least twenty (20) hours of
his/her professional time per week to the delivery of services
pursuant to this Agreement.
3. COMPLAINTS
A. A method to respond promptly to indigent defendant client
complaints shall be established by the Public Defender. If the
attorney and client cannot resolve the complaint amicably, the
attorney shall ask the court for permission to withdraw and
substitute new counsel. The complaining client should be informed
as to the disposition of his or her complaint within a reasonable
period of time. If the client feels dissatisfied with the evaluation and
response received, he or she should be advised of the right to
complain to the Washington State Bar Association.
B. The Public Defender shall notify the City and respond in writing to
the City within seven (7) days of learning of any complaint against
the Public Defender or against the City relating to the provision of
indigent defense legal representation.
C. The Public Defender shall immediately notify the City of Yakima in
writing when it become aware that a complaint lodged with the
Washington State Bar Association has resulted in reprimand,
suspension, or disbarment.
Page 9 of 11
EXHIBIT B
CLIENT REPRESENTATION PRACTICE GUIDELINES
• Meet and communicate regularly with the client.
• Thoroughly explain to clients the constitutional, statutory and other rights that
they have with regards to their case.
• Thoroughly explain to clients the elements of the offense(s) that the City must
prove in order to obtain their conviction at a trial.
• Describe case procedures and timelines.
• Listen to client's questions and respond to them.
• Enable clients to candidly communicate with counsel.
• Facilitate agreements by realistically evaluating allegations and evidence with
clients.
• Promptly communicate all offers, of settlement.
• Prepare cases well.
• Conduct high quality, early case investigation.
• Conduct early case negotiations.
• Use discovery appropriately.
• Prepare for and participate in alternate resolution opportunities that may be
available.
• Obtain experts and evaluators for cases involving disability, mental health,
substance abuse or similar issues, when appropriate.
• Draft well -researched and written motions and other legal memoranda and
other documents.
• Competently and aggressively litigate hearings and trials if no agreement is
reached.
• Appear at all court hearings with clients except as otherwise discussed in this
agreement.
Ensure clients have adequate access to services, including court ordered
treatment and/or counseling.
• Explain the importance of obtaining court ordered treatment and/or
counseling services to clients.
• Develop a thorough knowledge of the resources available.
• Explore with clients ways to effectively participate in court ordered treatment
and/or counseling.
• Ask clients for feedback if obstacles prevent or impede their participation, and
follow up with the agency and in court when appropriate.
• In appropriate cases, encourage clients to obtain necessary evaluations and
enroll in counseling and/or treatment even before ordered by the court to do
so.
• Prevent continuances and delays within attorney's control.
• Treat all cases assigned to counsel with the highest priority.
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• Avoid over scheduling whenever possible.
• Request continuances only if they are needed for substantive reasons.
• Take all necessary action to identify conflicts at the earliest practicable time
upon receiving case assignments and case reports.
Page 11 of 11
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. ( g
For Meeting of July 5, 2011
ITEM TITLE: Consideration of resolution authorizing Public Defender Agreement with Richard
Gilliland, Attorney at Law
SUBMITTED BY: Michael Morales, Assistant City Manager
CONTACT PERSON/TELEPHONE: Michael Morales 575-6040
SUMMARY EXPLANATION: Dixon & Lee Law Firm has been serving as the City's
contracted Public Defender since January 1, 2007. This agreement has required the firm to
provide 5 attorneys for public defender services, per state standards for which the city
receives funding. As one attorney has left the firm, the city must contract for a replacement
attorney to maintain this minimum threshold.
The city administration department issued a request for proposals for this service. Richard
Gilliland has been determined to meet the necessary qualifications to provide this service.
Attached for your review and consideration is a Resolution authorizing the City Manager to
execute the attached agreement with Richard Gilliland to provide mandated indigent defense
services to the City as described in Exhibit B.
The agreement, as presented, shall be effective immediately upon City Council approval and
extend through December 31, 2012. Total compensation for the contract is $80,000.
The legal defense of indigent persons at public expense is a mandate stemming from a 50
year old United States Supreme Court decision. Accordingly, the City is responsible for those
indigent persons adjudicated by the Yakima Municipal Court. The City has been successful in
a competitive grant administered through the Washington State Office of Public Defense
(OPD) for the past four years which has helped mitigate the cost of this mandate. The City
will submit its grant application to OPD for 2011 at the end of July, the success of our
application will be known in mid-September.
Resolution X Ordinance Other (Misc. Information)
Contract X Mail to (name and address)
Phone:
Funding Source: General Fund
APPROVED FOR SUBMITTAL
City Manager
STAFF RECOMMENDATION: Approve Resolution and authorize City Manager to execute
contract with Richard Gilliland.
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION:
n
P-D-ot C