Santa Cruz County Grand Jury
• 2010-2011
Forever Gr$$n, But Not TransparentWhy Does the Grand Jury Keep Investigating the Primary Public Defender Contract?
⚠️ Translation Notice: This content has been automatically translated. The original English text is the official version. Translation may contain errors.
⚠️ Este contenido ha sido traducido automáticamente. El texto original en inglés es la versión oficial. La traducción puede contener errores.
Findings 6 findings
F1
The current contract for public defender services is a fixed-price multi-year instrument. There is no visibility (transparency) into the breakdown of costs associated with this effort. The CAO negotiates extensions to this contract periodically without reference to the separate cost elements which make up the bottom line price.
F2
The primary Public Defender’s contract has never been audited by the County Auditor- Controller’s Office or any independent, outside auditor. This finding is similar to a finding of the 1991-1992 Grand Jury, which recommended that provisions for audit be included in all County contracts. The County’s response was, “The County’s policy regarding the inclusion of an audit provision within a contract is determined by the specific requirements of the contract. Certain contracts, particularly for professional services, including legal services, generally do not contain a provision for audit.”
F3
The County, as directed by The Board of Supervisors, has not initiated a request for proposal for the primary public defender contract due in part to the following reasons: • belief that public competition for this contract would be costly and complex • assumption that there is no other local law firm of sufficient size that could manage the current work load • fact that the Board of Supervisors and judges are satisfied with the current law firm and therefore there is no reason to change contractors
F4
The County’s decision not to convert from a contracted public defender to a County department is based largely on the use of a comparability or replication model and the costs associated with conversion. This model was developed in-house by the CAO and is considered to be Confidential.
F5
In 1998, the County created a Public Defender Transition Task Force to consider future provisions for public defender services if the primary contractor were no longer available. The Task Force’s efforts included estimating the costs of contracting with other law firms and the costs of providing public defender services through an in-house department staffed by attorneys who would be County employees. Since this 1998 exercise and a 2006 update of the comparability model, there have been no recent evaluations of possible alternatives for providing public defender services.
F6
All parties involved with the primary public defender, e.g., the Superior Courts, the County Board of Supervisors, County attorneys, and the CAO, are satisfied with the services provided by the contractor. Several persons interviewed by the Grand Jury volunteered favorable comments about the quality of the primary public defender’s services. Conclusions C1. During the last 35 years, the same law firm has been contracted to be the primary public defender. Because there has been no competition for, or audit of, this contract during this time period, the citizens of Santa Cruz County only can assume that this is the best means of providing public defender services. The County needs to make public not just their reasoning but also their factual findings as to why the County continues to contract public defender services with the same firm. C2. There is more latitude with service contracts than just the bottom line. The County’s argument that the contract is too large for another local firm cannot be known without an RFP; another firm may be able to satisfy the terms of the contract. The County’s arguments that there are costs involved in the RFP process and that everyone appears to be satisfied with the current contractor seem to be true. However, with the RFP process the County might be able to award the contract to the current contractor at a lower cost to the County. C3. Without an analysis (audit) of the cost elements which determine the bottom line price of the public defender services contract, it is impossible to determine if the price is fair and reasonable for the effort being performed, especially since this contract is extended periodically without competition. The County’s response to a prior Grand Jury
Recommendations 5
-
R1The Board of Supervisors should direct the County Administrative Office to restructure the current contract from a fixed-price type to a cost element type immediately or, at a minimum, during the next negotiation with the incumbent contractor. Forever Gr$$n, But Not Transparent ∫ 23
-
R2The County Administrative Office should add a ‘right to audit’ clause to the primary public defender’s contract.
-
R3The County Auditor-Controller’s Office should conduct annual audits of the public defender contracts as part of the ongoing County Audit Program.
-
R4The County Administrative Office, or other appropriate agencies, should announce publicly if and when the public defender contracts are being competed or extended by negotiation in a manner similar to other contract awards or announcements. In view of the extended period since this contract was put out for bid (1975), such an announcement would indicate that a formal public process is being used by the County to obtain these services.
-
R5The County Administrative Office should have the comparability model reviewed and updated by another agency or organization, such as the County Auditor-Controller’s Office or an independent auditor, to verify that the model provides a valid basis for the decision to continue to use a contracted public defender.