A blog of the Philadelphia Bar Association’s Criminal Justice Section

Miriam Enriquez, Esquire, legislative aide to Councilperson Dennis O’Brien reports as follows:

Yesterday Councilman O’Brien’s legislative package dealing with indigent defense was unanimously passed by City Council. In order for a bill to pass on the floor of City Council, it must get a majority of the votes. All members voted in favor of the legislation. The vote was 15-0. The two missing votes were Councilman Green, who resigned to be the chair of the SRC, and Councilman Henon, who had a leave of absence for yesterday’s session.

The package now goes to the Mayor who has ten days (until the March 6 session) to sign it, not sign it or veto it. If he signs it or doesn’t sign it, the package becomes law. If he vetoes the package, the bills will be sent back to City Council for an opportunity to override the veto. The Councilman can choose to have the override vote on the day the veto is returned (March 6) or the following Council Session (March 13). In order to be successful in overriding the Mayor’s veto, there must be a 2/3 vote (12 members of council) in favor of the legislation. If we are successful in overriding the veto, then the charter change question will go on the May 20th ballot and the reporting requirement ordinance will become law.

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Honorable Dennis M. O’Brien

Councilperson O’Brien’s remarks to City Council

Thank you, Mr. President.

The right to counsel is a fundamental procedural safeguard guaranteed under the Bill of Rights to all persons accused of a crime who are unable to afford a lawyer. In the landmark case Gideon v. Wainwright, the U.S. Supreme Court recognized the fundamental role that legal representation plays in a fair criminal justice system.

On November 14, 2013, I introduced, with cosponsor Councilman Greenlee, a three piece package of legislation regarding indigent representation, which is not just limited to criminal counsel but also dependency cases. They were recently referred out of committee and are before all of Council today.

The first two pieces of legislation are a change to the Philadelphia Home Rule Charter. Bill # 130851 is the ballot question and Resolution # 130861 is the accompanying resolution. Currently, section 2-309 of the Charter titled “Leases and Contracts,” states, “The Council may by ordinance authorize the leasing of real estate for more than one year and the contracting for personal property to be supplied or for services to be rendered over a period of more than one year.” As a result, City Council has no authority to review contracts that the Administration enters into when the length of the contract is for one year or less.

I do not believe that every contract should require City Council approval. However, I do strongly believe that any contract dealing with an individual’s constitutional rights is important enough to require Council approval. I understand that amending the Home Rule Charter is not an action to be taken lightly, but these contracts are of such importance that an exception to the Charter is not only required, but in the best interest of the City. The right to counsel is a constitutionally protected right. The contract that the Administration eventually plans to issue an RFP for and sign, deals directly with this constitutionally

protected right. This Charter amendment will not prohibit the Administration from entering into a contract, it will just require a public forum to be able to review the contract and get answers before any contract is signed. Without this legislation there is zero public input.

My proposed narrow amendment to the charter requires that all contracts for the rendering of services for a year or less that involve the expenditures of more than $100,000 for the purpose of providing legal representation and related services for the indigent may only be made when permitted by ordinance. This provision applies to the contracts, renewals and extensions. In order to make the amendment as narrow as possible, so as to not open the flood gates of Council approval for every contract, I did the following: (1) Put a monetary threshold of over $100,000 and (2) specifically state that this amendment only applies to contracts dealing with the legal representation of the indigent. The monetary amount is necessary to make sure that only large contracts are considered.

As a result, this excludes individual private attorneys who are currently providing legal representation to the indigent by being court appointed conflict counsel. However, the monetary amount includes the Philadelphia Defenders Association, Child Support Center, and Community Legal Services. Because these organizations have been successfully contracting with the City for many years, they are exempt from the review requirement unless Council provides an ordinance to the contrary.

The third piece of legislation, bill #130852, is an ordinance that requires audits of the law firm or entity the City enters into a contract with for the representation of the indigent. There are two audits– a financial audit and a quality control audit.

The financial audit is standard and encompasses what Council already asks of many other departments during the budget process.

The quality control audit will be performed by an independent auditor who is familiar with indigent defense systems and the Philadelphia criminal justice system.

The legislative intent behind this ordinance is to make sure that the level of representation for the indigent is up to the national standards. Many of these quality controls are prescribed and recommended by the American Bar Association. I believe we are ensuring that Philadelphia lives up to those standards and principles in every aspect of our indigent defense delivery system.

Thank you, President Clarke.

For more information contact Miriam Enriquez at Phone: 215-686-3440 | E-Mail: miriam.enriquez@phila.gov

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