Public defenders facing furloughs, unfilled vacancies

Missouri judges were told last week that furloughs are coming to the state Public Defender system on Jan. 1, unless Gov. Jay Nixon releases money he withheld at the start of the state business year on July 1.

State Public Defender Cathy (Cat) Kelly sent the notice Thursday, warning “that your local public defender offices will be running into some unforeseen staff shortages in the not too distant future.”

She told the News Tribune in an e-mail they’ve been trying to control costs since Nixon announced the $1.4 million withholding.

“We have therefore been holding vacancies open an extra 60 days to try to accumulate vacancy savings, but it has become apparent that is not getting us close to where we need to be,” she wrote. “As a result, we are starting a hiring freeze as of Nov. 1.

“Any vacancies from turnover will remain open indefinitely.”

The U.S. Constitution’s 6th Amendment gives all criminal defendants the right “to have the assistance of counsel,” and Supreme Court rulings have said that includes people who can’t afford to hire their own attorneys.

For many years, private-practice lawyers provided the service — but often their legal practice wasn’t in the same area as the criminal charge they were defending against.

Missouri lawmakers created the public defender system in 1972 to have lawyers whose only job was providing a legal defense for people charged with a crime that could result in a jail or prison sentence, but who couldn’t pay for a lawyer.

Since 1976, the system has been governed by a seven-member commission. Daily operations are directed by the state public defender.

Lawmakers this year appropriated $38,363,840, from all funds, for the public defender system’s operations in the 2013-14 business year.

But, Kelly said in her e-mail to state judges that Nixon’s withholding left the system “without sufficient funds to meet its payroll this year. Because we have been told to operate from the premise that these funds may not be released at all, we must impose an across-the-board hiring freeze in an effort to recoup funds with which to meet payroll.”

She told the judges that vacancies occurring after Nov. 1 “will remain vacant until the end of this fiscal year (June 30, 2014) or the governor chooses to release our funding, whichever comes first.”

Wanda Seeney, an administration manager for the Office of Administration, said in an e-mail late Friday afternoon: “The public defender, as with most state agencies, has a 4 percent expenditure restriction on some appropriations — not the standard 3 percent reserve.

“We have reviewed and will continue to review the revenue situation and expenditure restrictions on a regular basis.

“Changes to expenditure restrictions may be made in the future.”

The Legislature’s appropriation allowed for the equivalent of 587.13 full-time employees.

Kelly told the News Tribune on Friday: “Currently we have half a dozen or so vacancies, but those can still eventually be filled. ... It will be only the new vacancies that occur on or after Nov. 1 that will be frozen.

“We made that distinction because the hiring process is already underway for these current vacancies.”

Lawyers in the system must give 30 days’ notice “to leave the system in good standing,” Kelly said, “We’re getting notices now of positions that will be vacated in November.”

Under the hiring freeze plan, those vacancies will remain unfilled, and “(we) wanted to give our district defenders and the courts fair notice ... so they need to start planning now for whatever work-arounds they can come up with.”

But there’s no plan to allow more vacancies in some areas so that more crucial positions can be filled, Kelly said.

“We are talking about natural turnover that occurs randomly all over the system,” she explained. “All of our offices are overloaded, so there are no ‘soft’ areas from which we can pull while protecting the overloaded areas.

“Everybody’s stretched thin.”

For years, the Missouri public defender system has been warning courts and lawmakers that it’s carrying a heavier caseload than is reasonable or ethical.

Missouri prosecutors have disputed those claims, noting they also have heavy caseloads, including people with public defenders and people who’ve hired private attorneys.

Public defenders counter that prosecutors have the final choice in deciding whether charges should be filed, while public defenders only can reject a client because of income.

In her e-mail to the judges Thursday, Kelly wrote: “I know many courts around the state have continued to work diligently with their local defender offices to give their lawyers some measure of caseload relief.

“News that you will now have even less defender resources available to you is anything but welcome.”

She told the News Tribune if furloughs are required in January, they will affect all employees.

“Our outside guess now is that we’ll be looking at somewhere between one and three days of furloughs per employee,” she said, “but that will depend on what we’re able to accumulate in vacancy savings from the hiring freeze.”

She said the withholds also affect the litigation expenses fund, which cover the cost of hiring expert witnesses, taking depositions, copying records and transcripts, and other costs of non-homicide cases.

“Historically, our actual litigation expenses in non-homicide cases have been running significantly over what our appropriated funding for those expenses have been,” Kelly said. “We have been able to make up that difference by using part of our vacancy personnel savings from naturally occurring turnover.

“This year, we won’t have that savings to plug that hole, which means we’re going to come up short there as well.”

Under current estimates, that fund will run out of funds in March — and extra furlough days may be required to cover those costs.

“Right now, we’re just hoping the funds get released before we have to go down the furlough path at all,” Kelly said.

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