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Extracted from Consolidated Report

This investigation was originally published as part of a larger consolidated report containing multiple investigations. View the consolidated PDF for the complete document.

Santa Cruz County Grand Jury • 2009-2010

The Fiscal Impact of the Legalization of Cannabis ∫ 19 Web Sites

Published: April 06, 2011 42 pages

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⚠️ 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 9 findings

F1 Page 37

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. Response: Santa Cruz County Administrator Office and Board of Supervisors – PARTIALLY AGREE The current contract for public defender services is a fixed price multi-year instrument. The current contract is scheduled to expire as of June 30, 2015. The County Administrative Office has in the past negotiated extensions to this contract prior to and in accordance with expiration dates, and has negotiated reductions in the mid-term when the County’s fiscal constraints have required such renegotiation. The County has negotiated extensions to the contract in exchange for concessions from the amounts previously negotiated. Fixed price contracts are used throughout the County including in Public Works where large contracts do not include line item details on costs.

F2 Page 37

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.” Response: Santa Cruz County Auditor-Controller – AGREE To our knowledge such an audit has not been performed.

F3 Page 37

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 26 ∫ Santa Cruz County Grand Jury Final Report 2009-2010 • 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 Response: Santa Cruz County Administrator Office and Board of Supervisors – PARTIALLY AGREE The County has identified the following reasons for not recently initiating a request for proposals for the primary public defender contract: ● the complexity and costs associated with transitioning the magnitude of the current public defender case load (between approximately 9,500 to 10,500 adult and juvenile appointments per year), ● the absence of another local firm with sufficient staffing resources and management experience to provide comparable services, ● the indications by the Board of Supervisors and the Superior Court that the current contractor meets the need of their clients and the needs of the Court. ● the determination that costs for the current primary public defender contract are competitive with the costs the County would pay for a Public Defender Office operated as a County department, staffed with public employees and, ● the importance that the current Public Defender plays in the local Criminal Justice System as an advocate for the defense of indigent clients and as an advocate for an efficiently run criminal justice system.

F4 Page 38

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. Response: Santa Cruz County Administrator Office and Board of Supervisors – DISAGREE The County’s decision is based on all of the issues identified in the response to Finding 3 above.

F5 Page 38

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. Response: Santa Cruz County Administrator Office and Board of Supervisors – PARTIALLY AGREE The County created a Public Defender Transition Task Force in light of the fact that as of July 1998 there would be three years remaining on the agreement with the Biggam law firm. The purpose of the Task Force, as articulated in a preliminary agenda for the meeting on June 19, 1998, was to continue the County’s long tradition of cooperation between the Forever Gr$$n, But Not Transparent ∫ 27 Board of Supervisors and the Court in the delivery of public defender services, and to develop a plan for Public Defender Services, to address what happens when the Biggam Law firm is no longer available to provide public defender services, including a determination of what the form of the next provider would be, i.e., a County Department or another contractor, and when the transition would begin and end. During the period from June 1998 through December 1998 the Task Force considered a number of issues, including: how public defender services are provided in other counties, the County’s legal authority for multi-year agreements, inter-county cost comparisons for Public Defender services and the distribution of cost and caseloads between the main firm and the conflicts firms, the history of collection of payments for public defender services assessed by the Courts, the cost per case for the District Attorney’s Office, and the estimated cost of the main public defender function if it were operated as a county department. Among other costs, the estimate included costs for a Public Defender, attorneys, administrative staff, investigators and support staff. While not recalculated each year, in the event that the County renegotiates the economic value of the contract mid-term, the various elements of the comparability model are tested.

F6 Page 39

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. No Response Required 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 28 ∫ Santa Cruz County Grand Jury Final Report 2009-2010

F7 Page 52

Adolescents with addiction problems can be treated at Tyler House, often at no cost to their families. Importantly, the program is structured and of sufficient length to promote recovery. Students residing at Tyler House are able to continue their education at La Escuela Quetzal, a sober school adjacent to the house on the same property. Tyler House is not well-known and is underutilized. County Response: Santa Cruz County Board of Supervisors – PARTIALLY AGREE Tyler House is very well known to its primary referral sources (Probation, Children’s Mental Health, and the Alcohol and Drug Program) and is seeking to be better known by the general public. Although the occupancy rate at Tyler House is typically high, it dipped between January and June of 2010 due to clients with more difficult behavior problems being placed in the program who exited the program earlier than anticipated. Tyler House is working with the Probation Department to coordinate referrals of clients who are more appropriate for the program. The Role of the Alcohol and Drug Abuse Commission (ADAC) The Grand Jury found that ADAC has been dedicated in assisting the Santa Cruz County Health Services Agency in its efforts to stem alcohol and drug abuses. Historically, there have been times when ADAC has had to operate without a full panel of representatives. How to Catch the RecoveryWave ∫ 41

F8 Page 53

HSA has been handicapped by a lack of resources to promote broad awareness of RecoveryWave.com in the Santa Cruz county community, especially to those in critical and immediate need of support and information. County Response: Santa Cruz County Board of Supervisors – AGREE The County supported the Commission’s early promotion efforts, including paying for the printing of 11”x14” color posters and 8”x11” color flyers in English and Spanish. Commissioners, HSA personnel and members of the recovery community helped distribute the promotional materials, and the Commission issued press releases regarding the website. However, in recent years resources have not been available to support these public awareness efforts. The English version of the site has received 16,220 page loads (hits) since the Commission began accumulating data on the site on February 15, 2009. The site’s average daily hit count has increased 17.5 percent, from 28.5 hits in 2009 to 33.5 hits through July 21, 2010. The Spanish language site draws significantly fewer visitors, with 3,405 total hits during the same time period.

F9 Page 53

Both HSA and ADAC have voiced their willingness to accept the recent work of this Grand Jury on the residential treatment facilities as a resource both for HSA and for addition to the RecoveryWave.com web site. County Response: Santa Cruz County Board of Supervisors – AGREE The County agrees with this finding and thanks the Grand Jury for the thorough review of the website. The Commission is dedicated to maintaining an accurate, up-to-date, robust and informative website, consistent with the needs of the community and within budgetary constraints. Conclusions C1. The RecoveryWave.com web site does not include adequate information to help individuals make an informed decision when choosing a residential treatment facility in Santa Cruz County. C2. Santa Cruz County funding for residential treatment for individuals with drug and alcohol addictions has been cut back to such a severe degree as to deny treatment to many of the most vulnerable, such as the dual-diagnosed and serial inebriates, and to hamper recovery for many others because of shortened programs. Most of the funding available to Santa Cruz County for all these programs has been provided by the State. The drastic reduction in State support has severely affected programs within Santa Cruz County. C3. Despite the presence of a lengthy disclaimer on RecoveryWave.com, there is the appearance of endorsement of the programs listed on the web site by the County Health Services Agency and the Alcohol and Drug Abuse Commission. C4. The Santa Cruz County Board of Supervisors has provided limited support for promoting its public service web site, RecoveryWave.com. 42 ∫ Santa Cruz County Grand Jury Final Report 2009-2010 C5. Because of issues with the Spanish translation and the lack of a disclaimer in Spanish, the usefulness of the web site for Spanish speakers is compromised. C6. The disclaimer is nearly hidden in tiny type at the very bottom of the home page only, and a web site user is not easily aware of the cautionary remarks by the HSA.

Recommendations 5

R1
Page 40

The 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. Response: Santa Cruz County Administrator Office and Board of Supervisors – WILL NOT BE IMPLEMENTED The County Administrative Office cannot restructure the current contract immediately because the term of the contract has not expired. The County will include discussion of different methods of cost structuring in future negotiations.
R2
Page 40

The County Administrative Office should add a ‘right to audit’ clause to the primary public defender’s contract. Response: Santa Cruz County Administrator Office and Board of Supervisors – HAS NOT BEEN IMPLEMENTED BUT MAY BE IMPLEMENTED IN THE FUTURE The County Administrative Office cannot unilaterally amend the existing contract. The office will discuss this recommendation with the contractor if renegotiations occur.
R3
Page 40

The County Auditor-Controller’s Office should conduct annual audits of the public defender contracts as part of the ongoing County Audit Program. Response: Santa Cruz County Auditor-Controller – WILL NOT BE IMPLEMENTED WITHIN NEXT 6 MONTHS The County performs various audits each year included some contract compliance audits. Due to staffing limitations and the wide range of audits to be performed, it is unusual that the same contract compliance audit would be performed annually unless the County is required to do so by either contract terms or legal requirements. The current primary Public Defender's contract does not presently have a clause that allows the Auditor-Controller to perform a contract compliance audit of it. Any request to perform an audit would need to be negotiated by the County Administrative office with the Public Defender firm. Under the current terms of the contract, it would be at the Public Defender's discretion to allow the audit and to control the scope of the audit. However, the Forever Gr$$n, But Not Transparent ∫ 29 contract does stipulate that the Public Defender "shall provide other reports to the Board of Supervisors as may be requested from time to time by the County Administrative Office." The Auditor-Controller will work with the County Administrative Office to request various reports supporting a variety of detailed information which will hopefully allow the County to analyze staffing and case loads. At the time the Public Defender's contract is next modified, we support the contract being brought in compliance with the current County Procedures. The Current County Policy and Procedures Manual, Section 300.A, which covers contracts and agreements, requires that contracts contain an audit provision allowing for audit and retention of records for a period of not less than 5 years or until audited whichever occurs first. The originating department is responsible for ensuring that these provisions are included in the agreement. We would at that time place the contract compliance audit on our annual audit plan.
R4
Page 41

The 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. Response: Santa Cruz County Administrator Office and Board of Supervisors – HAS BEEN IMPLEMENTED Each year, the Board of Supervisors adopts the Public Defender Budget in a Public Hearing. The County Administrative Officer’s Recommended Budget and subsequent documents including the Supplemental Budget and Last Day Budget are made widely available to the public. For the past several years, existing contracts for the conflicts and main firms have only been re-opened by mutual consent solely to make reductions in the compensation schedules based on the County’s fiscal constraints. For each year that reductions have been agreed to by the contractors, the negotiations have included a one- year extension. These contracts are considered by the Board of Supervisors either in scheduled Public Hearings during budget considerations, or on publicly noticed Board of Supervisors’ Agendas.
R5
Page 41

The 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. Response: Santa Cruz County Administrator Office and Board of Supervisors – HAS NOT BEEN IMPLEMENTED BUT MAY BE IMPLEMENTED IN THE FUTURE Working with County Counsel to assure confidentiality, the County Administrative Office will review the comparability model with the Auditor-Controller for the purpose of verifying that the model provides a valid basis for the comparison of costs between a contracted public defender and providing these services as a County department. 30 ∫ Santa Cruz County Grand Jury Final Report 2009-2010