Philadelphia City Council has unanimously approved a legislative package that would affect the city’s plan to establish a conflict counsel entity to represent indigent defendants in criminal cases.
The legislation was put forth by Councilman Dennis O’Brien, who has opposed the idea of a for-profit conflict counsel agency since the city put out its initial RFP. The Nutter administration has since rebooted the bid for conflict counsel after canceling its notice of intent to contract to criminal defense lawyer Daniel-Paul Alva earlier this year.
“I think this passage ensures that there will be a new conversation about this important subject with this administration and with future administrations,” O’Brien told The Legal.
“I still have major concerns for any for-profit model,” O’Brien added, “but I believe an inclusive transparent conversation on how to best serve the needs of the indigent is the most important issue at hand.”
Mayor Michael A. Nutter’s press secretary, Mark McDonald, said the mayor has until March 6 to notify City Council as to whether he will sign or veto the legislation.
McDonald did not specify Nutter’s intentions for the legislation, but noted, “We did not support this in testimony before City Council.”
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 had said in his remarks at a Feb. 4 Law and Government Committee hearing. “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 said in his remarks 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 had said.
The financial audit is modeled after the requirements the council asks of other city departments, O’Brien had 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 had said.
At the hearing, Director of Public Safety Michael Resnick 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 had 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 had 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 had 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 had said.
However, Councilman William Greenlee told Resnick at the hearing 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” at the hearing.
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 had 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.