Benton County to pay off 3 public defenders

By Paula Horton, Tri-City HeraldNovember 10, 2012 

Benton County will pay off three public defenders, ending a contract dispute that began two months ago and even landed in court last month.

Attorneys Scott Johnson, Dan Arnold and Kevin Holt reached an agreement with county officials after an almost eight-hour mediation session earlier this week.

"We are all three disappointed in the way it was handled," Johnson told the Herald. "We wanted to continue working. We made it clear that we wanted to continue with our contracts as written, but they didn't leave us with any choice."

It will cost the county almost $48,000 to buy out the three contracts, he said. That doesn't include the cost to defend against Johnson's injunction -- a lawsuit he lost three weeks ago -- or the mediation costs.

Eric Hsu, the county's indigent defense coordinator, told the Herald he couldn't discuss the settlement or provide updates about public defense issues because commissioners had not yet formally approved the resolution.

Richland lawyer Jan Armstrong, who served as the mediator, cost $220 an hour. The county is responsible for half the mediation cost, with the other half split between the three attorneys, Johnson said.

The county also was represented during mediation and Johnson's legal action by Pasco attorney Tim Klashke.

Holt, who has been on the indigent defense panel since 1996, said he was disappointed that the county didn't bargain in good faith with him and the other public defenders.

"They're unwilling to do anything," he said, adding that the three attorneys in mediation reflected "50 years of criminal experience. That seemed to mean nothing to them."

Arnold has been a public defender in Benton County Superior Court since 1993, but also had six years in the '80s as a juvenile court defender and was director of public defense in Chelan County in 1991-92.

Johnson has had a public defense contract for three years and spent the previous 11 years as a deputy prosecutor for the county. He also is one of four lawyers on contract with Benton and Franklin counties to handle homicide cases.

The three attorneys resigned their contracts to represent poor clients in Benton County Superior Court effective Sept. 5 after a breakdown in negotiations about compensation and new caseload restrictions mandated by the state Supreme Court.

They attempted to rescind their resignations about two weeks later because county officials had not yet accepted the notices.

On Sept. 25, however, county commissioners approved resolutions accepting the resignations, but it's not clear if they knew the attorneys had taken them back.

Defense attorneys Sal Mendoza Jr., Larry Zeigler and Gary Metro also resigned from their public defender contracts.

Metro also attempted to rescind his resignation but was not part of the mediation. He told the Herald this week that he has applied and interviewed for a new contract with the county.

The public defenders no longer were receiving court appointments as of Nov. 5, but they have through the end of the year to resolve their cases.

As part of the mediation settlement, the county agreed to pay Johnson and Holt -- who already had reached their 150-case cap this year -- on their contracts through February, Johnson said.

The extra three months of pay, at about $6,800 a month, means they each will receive $20,400 from the county.

Arnold will get paid just for December because he hadn't yet reached his case limit this year.

"We still don't have any explanation as to why they didn't want to let us continue with our contracts," Johnson said. "It makes no sense. They're paying Dan for a month of doing nothing. They're paying Kevin and I for three months ... in essence for doing no more work."

While the attorneys did not want to sign new contracts that they said provided less pay for the work they do, they did want to continue working under their current contract.

The contract, which paid $82,105 a year, was good through the end of 2013. But Johnson said they would only be able to work under the contract through the end of August, when the Supreme Court's mandates on case restrictions take effect.

County officials, however, made it clear during mediation that even if they agreed to let the attorneys take back the resignations, they still would be out of a job in three months, Johnson said.

Terms of the contract allow either party to give a 90-day notice to terminate without a reason.

"It's not a good resolution. I don't think it's a good resolution for anyone," Johnson said. "But the county was clear they were going to exercise their legal right to terminate (the contracts). Kevin and I were happy, given the circumstances, to take three extra months of pay without any additional work."

The lawyers said they began meeting with Hsu earlier this year to discuss the pending Supreme Court rule changes, which mandate full-time attorneys take no more than 150 felony cases or 300 misdemeanor cases each year.

The high court's ruling means public defenders would have to limit the court appointments they received if they also want to continue to take on clients hired through their private practices.

Attorneys said they already were "grossly underpaid" for the work they do, and Hsu acknowledged they should get increased compensation with the new indigent defense contracts. But, the lawyers said, the county's new contract actually amounted to less pay.

"I just think it's a shame that Benton County is more concerned about funding an executive position for a person who provides no value to criminal defense, who doesn't try any cases ... and they're unwilling to provide quality defense," Holt said.

Just four attorneys are left on the defense panel right now, but Hsu has been making arrangements to get new lawyers hired. Commissioners have not approved any new contracts, so Hsu would not provide information about the new lawyers.

"All I can say right now is that we do have plans in place to make sure that everyone who needs representation is properly represented, no matter what happens from this point on," he said in an email to the Herald.

Hsu also said he's been working closely with judges, attorneys and officials in the county clerk's office to make sure "we have continuity of appointment, high-quality representation, and that none of our clients fall through the cracks."

Arnold and the other public defenders, however, have said that going with the lowest bidder to take the contracts doesn't ensure proper representation of indigent defendants.

But, Arnold also told the Herald that he doesn't blame the county for trying to save money by paying as little as it can for public defense.

"I am disappointed in some lawyers, not the county. The county did what one would expect. The lawyers who signed contracts with the county should know better," he said. "They know what they are worth. Perhaps they feared they cannot find clients in the private market."

Arnold said only time will tell if the lawyers taking new contracts will truly limit their private practice work to comply with the Supreme Court's order, but that he, Mendoza, Zeigler, Holt and Johnson all agreed they couldn't continue to sign a new contract with the county that provided inadequate compensation.

"I am proud to be among those who stood on principle, despite the fact that I will miss the opportunity to represent those accused who cannot afford to hire me privately," he said.

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