Sunday, May 20, 2007

County Slashes DA's Pay

(Reference "Spitting in My Face," by Tom Bennett, in the Daily Astorian, May 17, 2007.)

Those of you outside Clatsop County may think the dispute detailed in the above Daily Astorian article is a purely local issue. It is not. The decision of a majority of the County Commissioners to abruptly slash my pay by more than 15% goes to the issue of the independence of the elected prosecutor from petty local politics.

Thanks to the many people who have called, written, e-mailed, and approached me on the street. Most people have asked what they can do. Please write to the Commissioners and, to ensure your voice is heard, copy the Daily Astorian.

Clatsop County Commissioners, 800 Exchange Ave., Astoria OR 97103
The Editor, Daily Astorian, 949 Exchange St., Astoria OR 97103 (editor@dailyastorian.com)

More importantly, come to the Public Hearing the Clatsop County Commission will hold on Wednesday, June 13, at the beautifully restored and almost never used "Boyington Building," at the corner of Duane and 8th in Astoria (some parking in back). The meeting begins at 9:00am, and Public Comment is early on the agenda.

Make no mistake: This is a personal attack, partly in adolescent pique at the that fact my wife, Cindy Price, dared to run against an incumbent County Commissioner last year, partly because of my aggressive prosecution. I have always prosecuted any case without respect to who the defendant is or who they are related to. In a small town a diligent prosecutor will invariably alienate the friends and family members of those people who are convicted of crimes ranging from DUII to Manslaughter. I have also been relentless in my criticism of the shenanigans involving the Astoria Municipal Court and DUII cases. I'm an outspoken advocate for crime victims, and my fellow prosecutors and I am frequently asked to comment by national print and broadcast media. I am currently Vice President of the National District Attorneys Association and am a candidate for the Presidency; the election is in July, in Portland, Oregon, at NDAA's summer conference. Former OJ Simpson defense attorney Barry Scheck recently sent a three- page diatribe to the NDAA President and members of the Board of Directors personally attacking me for my national advocacy in an effort to dissuade my fellow prosecutors from electing me their president. I doubt many will be convinced.
In 2002 I tried the most recent capital murder case in Clatsop County, against a killer named Anthony Scott Garner. As part of the case defense attorneys claimed his co-defendant couldn't get a fair trial and obtained the services of one of Oregon's best pollsters, Mark Nelson, to measure the mood of the county. In addition to the questions about whether the approximately 350 citizens sampled had heard of the case, the poll asked an unusual question: "Do you have an opinion about the District Attorney, Josh Marquis?" Roughly 75% of those polled did. They were asked to rate my performance as either "poor," "fair," "good," or "excellent." Over 70% rated me as “good” or “excellent” and less than 10% as poor.

If I do my job right I'll probably have about 20% of the county upset at me for either prosecuting or not prosecuting their neighbor/friend/brother/daughter. Since I arrived in Astoria, in 1994, I've heard that I'm "just passing through town" and am using the job for bigger things. I have now served as DA longer than anyone since the depression-era DA, Garnet Green, almost a century ago. I have run the DA's office longer than any head of any county department currently working. Scott Derickson is the fifth person to hold the job of County Manager since I took office.

Now here are the details on what has happened.

Like all Oregon DAs, I am a State officer, elected by the citizens of Clatsop County. As in every other DA’s office in the state, all the Deputy DAs and other staff are County employees. State law requires me to prosecute cases but says nothing about administering a county department. I run what is essentially the largest law firm in the county and spend probably 30% of my time on the same administrative functions as every other county department head, all of whom are paid anywhere from $70,000 to $95,000 thousand a year.

Each year there is an elaborate budget process, the terms and deadlines for which are mandated by the County Manager, who is the CEO of Clatsop County under the county's Home Rule Charter and more importantly the County's Budget Officer.

This year -- the 14th for me -- the budget process began as usual. I spent many hours prepping the budget for my department (about $1.2 million) before submitting it to the County Manager for his comment and recommendation.

On March 17, I met with Scott Derickson and his team, Asst. County Administrator Deb Kraske and Central Services Director Mike Robison (both of whom will now be paid more than I beginning July 1). They said there were no issues or problems with my budget. The County Manager, who has great power, never communicated to me that either my office’s budget or my own supplement were in jeopardy.

In the Budget, Scott Derickson recommended the same funding as I had requested, but later churned out a 20-plus-page memo with color charts. This April 17 memo uses numbers taken from the word processing program called DACMS that the DA’s office uses to generate paperwork to make the claim that, while the caseload has been flat, the personnel budget of my office is skyrocketing, increasing 50% in just over 7 years.

In fact the DA’s office personnel budget has increased less than that of the entire County personnel budget. Nevertheless, the phony numbers form an argument the County Manager is using to prevent the secured funding of the two new staff my office received at last year’s budget hearing, staff that represented only half of the minimum additional staff recommended by a study commissioned by the County Manager prior to last year’s budget. That study, by the Local Government Policy Institute (LGPI), cost taxpayers something over $10,000. It looked at how much work my office does compared to other counties and what, if any, additional staff was needed to meet the addition of the new circuit judge. The LGPI study recommended a minimum of 4 new staff (2 lawyers and 2 support staff), and ideally 7.5 (3 lawyers and 4.5 support staff). I requested 4 and received 2, and was required to tell the new hires that their jobs were at risk of being cut at any time.

On May 6, I met with Commissioners Jeff Hazen and Ann Samuelson, in my office, specifically to discuss the upcoming Budget hearing. Neither indicated any problem with the County Manager’s public profession to recommend my budget as I had proposed it, and neither made any mention of my stipend.

Nevertheless, given prior history, you might imagine that I expected I’d have to defend retaining the two positions the County grudgingly added to my budget in December 2006. I was particularly concerned after finding County budget documents which I had never seen before posted on a local blog site later in the day on May 6. I made a formal demand on May 7, four days before the Budget hearing, that I be provided copies of whatever the County Manager was sending the Budget Committee. The County Manager’s office complied and, while reviewing the documents over the weekend, I discovered another concern: there were several memos written by the County Manager about my supplement, about DA compensation, and about the pay of other County department heads. Was my own supplement going to be threatened, without any prior notice?

At the Budget Hearing , the Committee whipped through about $50 million of the budget in two hours. At 11:30 Commissioner Hazen suggested that the "next item," the DA's budget, would take longer and proposed an early lunch break.

After lunch I made a brief presentation, with some focus on the value of the two positions (one lawyer and one trial assistant) added just six months ago. Presiding Judge Phil Nelson spoke for their need, saying that a third judge and the increased complexity of litigation overall was creating more work for the DA's office. As I had expected, the discussion centered the conditions under which the two positions would be retained.

The Commissioners, Jeff Hazen in particular, expressed their willingness to continue funding only if I came up with performance measures that were acceptable to the County Manager -- and, more significantly, said that in the event of any budget shortfall those positions would be the first to be eliminated, a position that is in direct contradiction to their stated policy that in the event of cutbacks public safety services will be cut last.

I asked whether the two positions would be guaranteed through the end of fiscal year, in June 2008 -- in other words, can I assure my Deputy DA and my trial assistant of at least one year's employment? The Commissioners insisted that it would be up to them and the County Manager to determine whether and when the budget would need to be reduced, and that the axe could fall at any time.

I responded that it seemed ridiculous to balance the County $57 million budget on the backs of two staff members of the DA’s office costing a total of about $122,000 a year. No other department is being asked to make or is threatened with reductions. There was no response.

According to the agenda, at this time we would have moved on to the Child Support budget, another division in the DA’s budget.

Instead, Commissioner Hazen moved to “take the DA’s stipend to zero.” There was virtually no discussion. County Manager Scott Derickson, whose pay will be $102,500 in July and who has as a primary duty that of being the County’s budget officer, didn't say a word during the brief discussion among committee members about my stipend. He is instrumental in this action, as implied by Steve Forrester in his Daily Astorian editorial of May 17 (What's in the water at the courthouse?). Commissioner Richard Lee didn’t say a word. At some point Commissioners Hazen and Samuelson brought up performance measures. It was sort of chaotic. The vote was quickly called, and the decision was 7-2, with Commissioners Sam Patrick and Richard Lee voting against the motion.

Therein lies another couple of tales, the first about performance measures and the second about the County’s supplement to my State pay.

In January 2007, County Manager Derickson and I began a brief e-mail exchange about performance measures. Several departments, including mine and his, had not detailed any performance measures in last year's budget. I asked him what he wanted to measure -- convictions? plea bargains? There is considerable controversy nationwide about how to measure the performance of law enforcement agencies. It's too easy to cook the books. A department head can easily increase convictions by dismissing tougher cases or making plea bargains even easier to attain. I provided Derickson with materials from the American Prosecutors Research Institute (APRI) that suggest best practices for performance measures for prosecutors. APRI recommends a public survey. When I conveyed this at the Budget hearing Commissioner Roberts seemed incredulous: "You want a survey?"

The County Manager’s department has among its performance measures the number of hits for the Manager’s web page and the number of board packets prepared.

The County Commissioners have no performance measures, presumably because they are elected officials, like me, and their performance is measured at the ballot box every four years. By those standards, based on the votes cast in the Spring 2006 election, the Commission Chair, Richard Lee, received a 50.5% rating and I received 70%.

Commissioner Hazen has written on his blog and has been repeatedly quoted as saying that his action is not personal but is based on the principle that the County should not continue to fund that which the State will not. (See Clatsop County may trim DA pay, The Oregonian, May 17, 2007.) Three other commissioners have their own, different, stories. The Chair, Richard Lee, who beat my wife by 37 votes in the May 2006 election, told the Oregonian that he actually agreed with the action but voted against it so as not to appear vindictive. He claimed that I had "not co-operated in the budget process." He uttered not a word during the public hearing on May 11. Commissioner Patricia Roberts told Portland radio station KXL that the vote was meant to "send [me] a message." Commissioner Ann Samuelson has told people it was because I had not prepared performance measures.

Here is the DA's budget (County Public Safety Budget, .pdf format). You can see that I indeed submitted performance measures, listed on pages 5 through 7. The response to these measurements from the County Manager's office was their receptionist telling me the measures weren't in the right "format."

It’s abundantly clear from many memos and meetings that I fully participate in every aspect of the budget process. I have consistently met all budget deadlines, not only this year, but for all 14 budget cycles in which I have participated. Some have said that I participate too much, in that I am a strong advocate for the proper funding and staffing of the DA’s office as well as the Sheriff’s department and all other related offices. Perhaps that’s what is meant by not cooperating -- I don’t and won’t go along gently with any attempted dismantling of the justice system in Clatsop County.

My first year as DA, 1994, when I was appointed by the Governor, I did not ask for a supplement to my State salary, figuring that I needed to prove myself and get elected. I beat my opponent by a 79 to 21 percent margin and in 1995 asked for a supplement. The Board of Commissioners allocated $9,000 that year. In the ensuing 12 years the supplement has been under constant threat but has crept up with cost of living adjustments. The supplement has never been a quid pro quo for doing any specific work for the County. I manage a County department, follow County rules, attend County meetings and even perform some non-required legal work -- habeas corpus defense of the Sheriff, civil forfeitures, and mental commitment hearings. My office will continue performing all of those duties regardless of what they do to my pay.

One reason 22 of 36 Oregon counties provide their elected DA’s with a supplement is to ensure the pay of their top law officer is greater than that of their subordinates. The average supplement is $19,000 a year. Clatsop County has a policy of ensuring that bosses earn at least 10% more than the person directly under them. My chief deputy, a great guy who deserves every dime and more, will be paid $84,000 this year, compared to my State pay of $79,500. The average pay of all lawyers in Oregon is about $95,000 a year. Clearly, no one goes into prosecution for the money. We do it because we get to be part of doing justice every day.

In 2004 I asked the five citizen members of the Budget Committee to increase my supplement. The County Manager produced a legal opinion from one of the several lawyers with whom the county contracts for legal advice. The opinion declared that, since I am not a County employee, the Budget Committee, which also constitutes the Elected Officials Compensation Board, had no authority even to consider my request. Apparently their authority is prohibited only as to increasing my pay, not to decreasing it.

If Commissioner Hazen honestly has been concerned about the State’s funding of DA salaries for any length of time, he might have communicated that to our extremely responsive and approachable state lawmakers during one of his many trips to Salem. Instead, to my knowledge neither he nor any of the County Commissioners who voted to cut my pay have ever spoken to any of our State Legislators about the issue. I know for a fact that no one mentioned it to the two State Representatives and one State Senator who represent our county. Hazen might even have forged an alliance with me. Or one would think - if it wasn’t personal - he would have given me a heads up at our meeting a few days before the Budget hearing. Something like “Hey Josh, nothing personal but I don’t think the county should pay any part of your compensation. . . .” But that conversation never happened.

Oregon has a long history of poorly paying its elected state officials, a subject I have been vocal about for years and which I wrote about in the Oregonian a few months ago (see "Culture of Poverty"). That was just one in a long series of efforts I have made to get the State to pay a greater share of the costs of prosecution and to raise the pay of DAs.

I was a key player with the Association of Oregon Counties (AOC) in both the 1999 and 2001 legislatures (in 2001 as president of the Oregon District Attorneys Association (ODAA)), seeking passage of Senate Bill 6, proposed by Attorney General Hardy Myers, which tried to reverse the trend of the State laying more and more of the cost of prosecution on the Counties. The ODAA and AOC worked together on the Bill, which started out at $20 million (a biennium) but was whittled down to $5 million by the end of session. Unfortunately, the AOC chose to direct the money provided in 1999 to Assessment and Taxation and to direct that provided in 2001 to Mental Health. I don’t recall anyone from any Clatsop County Commission ever taking part in the dozens of discussions in Salem about this bill or about improving prosecution funding and DA pay in general. And you can imagine why the ODAA has been reluctant to join hands with the AOC since 2001.

It will be clear to any reasonable reader that the actions taken by the Commissioners and the Budget Committee are based on purely personal reasons, not driven by the Budget of the County.

To my supporters, thank you and keep those cards and letter coming. If you are in Clatsop County and have the time, please come to the Budget Hearing on June 13.

To those of you just wanting to know what the bleep is going on, feel free - as always - to post questions or contact me.

To everyone else in Clatsop County, thanks for letting me serve my fourth term as your prosecutor.

2 comments:

  1. 1. County department heads should be compensated for their work.

    They should also be an employee of the county, and have a contract as such. Since Josh isn't and doesn't, the county shouldn't pay him.



    Tell us, Cindy ... since Josh is a state employee, why should the county pay him anything? Because other counties do so? As most of us heard growing up, "If other counties jumped off a cliff..."

    Shouldn't the lack of compensation be brought up with his employer - the state? Shouldn't the state stop using ORS 8.830 to shirk its responsibility onto the backs of the counties?

    Perhaps there should have been better communication from Mr Hazen prior to the meeting. However, just because the county has been paying this supplement for years does not obligate the county to continue paying it - especially given the lack of any contract to do so.

    Sounds to me like a lot of people are too cowardly (or lazy) to take this issue where it needs to be addressed (IE; the state) and choose instead to try and bully the county. Given how closely the DAs work with police departments at all levels ... it also seems to me that they could easily get the police unions to help them pressure the state politicians to increase DAs pay.

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  2. Thank You Josh for a superb job that you and your office has done for clatsop county. I would hope that there would be more dwi and meth convictions.
    Luke Rummell

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