Luzerne County officials working to address indigent defense concerns

A plan is back on track to temporarily seek outside attorneys to assist with some indigent defense while the Luzerne County Public Defender’s Office is shortstaffed, officials said.

Due to attorney vacancies, county Chief Public Defender Steven Greenwald said in September he had to stop providing representation for nonincarcerated, income-eligible individuals charged with misdemeanors. He said the office would continue to provide defense for indigent citizens charged with felonies and also inmates facing misdemeanors.

County Court of Common Pleas President Judge Michael T. Vough said in October the situation could not be ignored because the county is legally required to provide representation to indigent people charged with misdemeanors. Council agreed to transfer funds from the public defender’s office so the court could retain outside contracted attorneys to provide the mandated defense.

However, Vough said last week the plan to hire outside attorneys never got off the ground because the unionized assistant public defenders, represented by Teamsters Local 401, sent a letter saying the union would file a grievance over the use of others to perform public defenders’s office work.

Vough said he was trying to help with a temporary solution, but the court was powerless to act due to the collective bargaining agreement and threatened grievance.

As a result, Vough said county judges have been forced to expressly “appoint” the public defenders office to handle hundreds of misdemeanor cases. The public defender’s office keeps filing motions to vacate each of these orders, and Vough said judges have denied all requests to vacate.

The halting of the outside attorney plan came to light because representatives of the American Civil Liberties Union Foundation emailed a letter to county council members last week expressing their “grave concern with the ongoing deterioration of indigent defense services” in the county.

Greenwald said later in the week that the union was concerned about the “tone” of the media coverage because it “made the union look more aggressive than it wanted to be.” While Greenwald conceded the letter about the threatened grievance was “strongly worded,” he said it also contained language conveying the union’s willingness to discuss a resolution.

County Acting Manager Brian Swetz sent an email to Greenwald and others Friday indicating he has come up with a solution for now.

Swetz said he has discussed the matter with multiple parties and had been in the dark about the situation until recently.

“I was under the impression that once council approved the transfer, this process started for the courts to hire attorneys. Clearly it did not,” Swetz wrote, adding that he is “not here to blame anyone or take sides.”

Swetz said a union official has agreed the union won’t immediately pursue further action while it negotiates a new contract with the county.

As a result, the courts are willing to move forward Monday to start advertising for outside attorneys, he said.

Swetz said he sees no need at this time for a formal memorandum of understanding between the union and county regarding the use of outside attorneys, noting the focus should be on the proposed 2023 county budget that includes funding for a new union contract.

“This is a Band-Aid but better than no action,” Swetz said, noting he will assume the effort to find outside attorneys will proceed unless any parties involved notify him otherwise.

Based on the original plan, the court will seek four contract attorneys paid $3,500 per month to represent the indigent, with the outside attorney contracts limited to three months.

The union contract covering attorneys in both the public defender’s and district attorney’s office expires the end of this month.

Greenwald had said his office has eight of 28 attorney positions open, with most departing lawyers citing compensation as a reason for leaving. The starting pay for attorneys in his office is $51,083 for full-timers and $34,165 for part-timers.

The ACLU letter says council has a constitutional and statutory duty to fund the public defender’s office “at a level that ensures that indigent people accused of crimes in the county receive effective representation at all critical stages of their criminal cases.”

It asserts council has failed for several years to fund the office “at a level that permits full staffing.”

However, it should be noted council has not attempted to lower the 2023 public defender’s office budget that had been proposed by prior county manager Randy Robertson and actually agreed to provide additional funding to restore an assistant public defender position that had been unintentionally cut.

Greenwald said Robertson incorporated much of his input, but he estimates he would still need approximately $31,000 for additional compensation plus funding for related benefits to bring assistant public defenders to a compensation that he believes is warranted in the new contract.

He does not know if he will ask council to consider a budget amendment making that change.

Greenwald noted he is not seeking funding to restore two vacant assistant public defender positions that had been eliminated in Robertson’s proposed budget. The chief public defender said the most pressing need is filling the other vacant positions, and he will take council members at their word that he is free to approach them down the road if he fills all positions and still needs the two that were eliminated due to caseloads.

Both Greenwald and county District Attorney Sam Sanguedolce have said they want to avoid a situation where the contract goes to binding arbitration.