Riverside County Indigent Defense Contract

In March 2010, rather than consider renewing the existing Indigent Defense contracts, the Board of Supervisors voted to issue a new Request for Proposal (RFP) for Indigent Defense later in the year with more explicit contractual requirements, a response to alleged improprieties regarding the selection of 2009-2010 Indigent Defense contractors. Additionally, in an effort to ensure that any and all future RFP’s and contract processes be more open, transparent and fair, the Board of Supervisors tentatively approved a draft of a set of amendments to Section 2.48 of the Purchasing Manual entitled B.R.U.T.E., “Bid Review Under Transparent Environment.” B.R.U.T.E. consists of nine amendment items listed as “A” through “I”. The Purchasing Department was instructed to review this draft and submit alterations to B.R.U.T.E. The County’s current Purchasing Policy manual recognizes two types of bid requests: Requests for Quotations (RFQ’s) and RFP’s. The latter allows the bidders to be contacted by the Purchasing Department after the proposals are submitted and before the final decision is made to allow re- negotiation of a final price even after a bidder has been selected. B.R.U.T.E. requires that “Regular audits shall be done to ensure the County Contractor is performing all the duties associated with their contract.” Current Indigent Defense contract requirements do not address the type of audits to be conducted (such as financial, physical or operational) once a contract has been approved by the Board of Supervisors. B.R.U.T.E. states that all proposals should be delivered to the Clerk of the Board and requires the “Public unsealing of bids and read into the record.” Testimony revealed that this procedure was added to improve transparency and avoid any appearance of collusion. Investigation further revealed that due to the vast number of County contracts awarded, the public unsealing of bids at Board of Supervisors meetings is not feasible, cost effective or necessary to ensure B.R.U.T.E. is being followed. Further investigation revealed that the Clerk of the Board does not have the space, personnel or resources to record, receive and handle public unsealing of all County bids.

In 2010, these Indigent Defense contracts totaled approximately $10.6 million per year and defined the provisions and requirements for providing Indigent Defense services. The 2010 cost of these attorney services totaled $9.6 million. The 2010 total annual amount of these trust accounts was approximately $1.0 million. An Indigent Defense contract is issued in two parts. The largest dollar part covers the attorney services provided in conflict cases. The other smaller part provides a trust account for ancillary non-attorney services. There is an existing provision in an Indigent Defense contract that stipulates the County may “audit/inspect files/books and/or financial records at any time”. However, investigation has revealed the Executive Office has been negligent in not requesting any audits of the larger contract portion, which provides attorney services. Indigent Defense contract provisions require that the trust account be audited each year by an external auditing firm. Investigation indicates that the trust accounts have only been audited five times in the past nine years. The auditors made many recommendations some of which were not implemented and many of the recommendations were repeated in subsequent audits.

The Riverside County Executive Office has no approved written policies and procedures for processing monthly Indigent Defense payments for legal services or handling monthly payments to their trust accounts. Investigation revealed that prior to April 2010, the Indigent Defense contractors’ documentation submitted to the Riverside County Executive Office was in the form of brief memoranda rather than detailed invoices or activity reports. The Riverside County Executive Office authorized monthly payments for Indigent Defense legal services before the Riverside County Executive Office received any specific activity reports. This demonstrates that validation of contracted services did not occur before payments were processed. Investigation also revealed that as a result of the Riverside County Executive Office becoming aware of this lack of documentation for work performed, the Riverside County Executive Office demanded Indigent Defense contractors submit activity reports before any payments would be issued.

Investigation into Indigent Defense reporting revealed that Indigent Defense contractors stated they were unable to provide hours per case to the Riverside County Executive Office. Conversely, as Riverside County is one of nineteen counties in California which houses State prisons, when hearings for prisoners incarcerated in a State facility occur and defense is provided by the local County, Penal Code sections 4750-4755 and 6005 allow for reimbursement to the County that provides these defense services on behalf of the State of California. Evidence also revealed that the FAM-27 form has been submitted by the County to the State for reimbursement and required the County to include the number of hours of Indigent Defense provided. 3

Examination into the selection processes for the Indigent Defense contracts revealed that the methodology used in the 2009 RFP relied on seven technical evaluation categories: five of which were rated with varying subjective levels, and two categories were evaluated as “Pass or Fail”. Five evaluators were selected to provide technical evaluations, only one of which had any defense experience. The significant fault of this 2009 evaluation system was found in the subjective category entitled “Cost to the County”, which had a weight of 40%. Further examination revealed that these evaluators used a range in their ratings from one to five, five being the highest. Two qualified bidders were only $100 apart on the final bid of $6.9 million, a difference of only 0.00144%, although their weighted evaluations were significantly farther apart. This demonstrated the weakness of the subjective evaluation process. The subjective ratings based on “Cost to County” were very far apart although the final cost bids were relatively equal. Since the weight of this category was 40% of the decision making process, it showed the broad range of assigned ratings had influenced the final decision incorrectly. In March 2010, a steering committee was created to develop a new 2010 RFP based on the B.R.U.T.E. process. Members representing each of the Supervisors, the Riverside County Executive Office, the Public Defender, County Counsel and Purchasing were invited to participate in the construction of a new RFP for Indigent Defense. All members contributed, although one County Supervisor did not send a representative. The final RFP reflected many changes from the prior RFP’s: there were more Pass/Fail categories and the evaluators’ credentials were vastly improved. This latter major change came when three heads of Offices of Public Defenders from other counties were invited to evaluate the submitted proposals. Their years of public defense experience totaled over 80 years. They came from the Sacramento, San Mateo and Sonoma counties for three days to evaluate each technical category in depth and not examine cost until their technical evaluations were completed. Based on the final calculations of the weighted categories, a single firm received the highest number of points. This firm had technical scores ranging from 8 to 10. The current Indigent Defense contractors scored lower in these same categories. The results were incorporated into a Form 11 (formal recommendation) and presented to the Board of Supervisors for consideration of approval on December 7, 2010. The