City Hall in Philadelphia ()
In the wake of the Nutter administration’s failed bid to appoint a firm to act as conflict counsel, lawyers and city officials gathered before Philadelphia City Council’s Law and Government Committee on Tuesday to discuss new legislation that would affect the city’s plan to establish a conflict counsel entity.
The hearing centered on three bills put forth by Councilman Dennis O’Brien and co-sponsored by committee Chairman William Greenlee focusing on the city’s request for proposals to set up an agency to represent indigent defendants in criminal cases where the Public Defender’s Office has a conflict.
The first two pieces of legislation consist of changes to the Philadelphia Home Rule Charter. Bill No. 130851 is the ballot question and Resolution No. 130861 is its accompanying resolution. The portion of the charter the bills deal with is the leasing of office space—in this case for an indigent defense agency.
“Currently, Section 2-309 of the charter titled ‘Leases and Contracts’ states, ‘The council may by ordinance authorize the leasing of real estate for more than one year and the contracting for personal property to be supplied or for services to be rendered over a period of more than one year,’” O’Brien said in his remarks. “As a result, City Council has no authority to review contracts that the administration enters into when the length of the contract is for one year or less.”
O’Brien added that while the committee agrees with the section of the charter for the most part, he stipulated, “I do strongly believe that any contract dealing with an individual’s constitutional rights is important enough to require council approval.”
The amendment to the charter would also require contracts pertaining to legal representation of the indigent of more than $100,000 to be reviewed by City Council before being approved. O’Brien added that the monetary stipulation was included to make sure only large contracts are considered, effectively excluding private attorneys who currently provide court-appointed representation to the indigent.
“The third piece of legislation,” Bill No. 130852, “is an ordinance that requires audits of the law firm or entity the city enters into a contract with for the representation of the indigent. There are two audits—a financial audit and a quality-control audit,” O’Brien said.
The financial audit is modeled after the requirements the council asks of other city departments, O’Brien said, and the quality-control audit would be performed by an auditor familiar with the indigent defense system.
“Along with the overall review of the operations and quality of the representation provided, the auditor will also check individual employee performance reviews, resumes and job descriptions to ensure that the complexity of cases is matched by an attorney’s experience level,” as well as make suggestions for improving the system, O’Brien said.
Several attorneys who testified at the hearing voiced support for O’Brien’s legislation, notably Philadelphia Bar Association Chancellor William P. Fedullo; Phyllis Subin, executive director of the Pennsylvania Coalition for Justice; and Robert Muench, chairman of the bar association’s criminal justice section.
Muench, who also serves as a court-appointed defense attorney, voiced support for the proposed legislation and testified that he had concerns about a lack of transparency of process relating to the previous conflict-counsel bid.
“This is what we wanted. To step back, take a breather, and take the opportunity to address some of these questions,” Muench said. “The RFP that was presented was not very well done.”
Muench added, “There’s a need for oversight in this process. It should come before City Council and not the exclusive purview of the mayor.”
Fedullo told The Legal that the bar association has not taken an official stance on the legislation to amend the city charter and proposed ordinance.
Fedullo testified that in the conflict counsel RFP development to come, the bar association “urges the city to adopt the [American Bar Association's] Ten Principles of a Public Defense Delivery System as its baseline for any program instituted to deliver legal representation” to those who cannot afford it and where the defender’s office has a conflict of interest.
Fedullo also observed that the impact of conflict-counsel appointments is far-reaching.
“Each year, thousands of Philadelphians receive representation through the conflict-counsel appointment system. Thousands more are impacted by the appointment system, including the victims of crime, witnesses and family members.”
The last testimony of the hearing was delivered by Director of Public Safety Michael Resnick, who spoke on behalf of the administration. In his testimony, Resnick said that the administration strongly opposed the bills.
“The addition of council review to the contract approval process will inevitably and without a doubt increase the out-of-pocket cost of the contracts,” Resnick said.
He added, “Whether or not ultimately true, the practical reality is that many potential contractors will believe that council approval will mean political interference in contracting decisions, potentially causing some worthy contractors to simply drop out of the process and others to increase their price as protection against anticipated increased contracting requirements.”
Resnick said that the proposed changes were a result of “fear and panic” at the prospect of change and reassured committee members that the administration has pledged to work with the bar association to develop a conflict-counsel system.
Additionally, Resnick said the administration welcomes council oversight and that the changes to the city charter are unnecessary.
“The point of my testimony is that we contract for other services that implicate constitutional rights, we do it well, and we don’t need the charter to be changed,” Resnick said.
However, Greenlee told Resnick that he was offended by the implication that council involvement in contract approval would constitute “political interference.”
Resnick replied that he didn’t mean to offend anyone, and reiterated that adding negotiations for a vendor with another layer of government would lengthen and complicate the process.
Councilman James F. Kenney also expressed displeasure with Resnick’s comment on “political interference.”
Kenney likened the council to a corporate board of directors and the mayor to a CEO in terms of contract approval.
“Could you imagine a CEO engaging in a contract of this level without talking to the board?” Kenney asked. “That CEO would be out on the street. … Things need to come before the board of directors before we move in one direction or another.”
Kenney finished his remarks by telling Resnick that his testimony convinced him to vote for the passage of the bills.
After testimony concluded, the committee voted to send the bills to the full council for further action.