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.

Thursday, May 17, 2007

What's in the Water?

What's in the water at the courthouse?
Would you inflict a 15 percent pay cut on one of your top managers?
Editorial in the Daily Astorian, May 17, 2007


Imagine that your company has a high visibility top performer. Imagine that his or her department has a high rate of success. Imagine that his or her department must now cover an additional set of clients. Imagine that employee has been with your firm for 13 years.

Would you cut that person's salary by 15 percent? Probably not. It wouldn't make sense.

That's what the Clatsop County Budget Committee did to the district attorney Monday. The county budget process began as a peaceful and businesslike budget discussion. Suddenly it became the annual tug of war over the DA's office budget. The finale - to cut the county's portion of the DA's compensation - was an utter surprise. The first rule of politics and government is: Don't surprise.

The district attorney's compensation has two components: a state share and a much smaller local stipend. Clatsop is one of 22 Oregon counties that supplements its chief prosecutor's salary with a stipend.

There is managerial illogic in cutting the district attorney's salary. There is also a smallness in the behavior of the county commissioners who form the nucleus of the budget committee. One of them, in concert with the others, executed a surprise attack. It is reminiscent of the commission's bad old days which regularly produced boneheaded decisions in the courthouse. Remember when that enlightened bunch decided to make the county's personnel director a half-time position? Remember the afternoon when three commissioners failed in their attempt to fire the county manager so they resigned, which forced Gov. Barbara Roberts to appoint a commissioner in order to obtain a quorum?

That was amateur hour, and this is amateur hour.

You wonder what's in the water at the courthouse. Otherwise-competent people join the county commission and begin to do foolish things.

Within the district attorney's pay cut there is an implicit message from the Board of Commissioners: "We wish you would leave." Or is it: "Don't be such an aggressive prosecutor." Perhaps it's "Go easier on our friends who are charged with drunken driving."

We've seen this plot in bad Westerns. The nefarious saloon owner torches the home of the sheriff or prosecutor to drive him out of town.

Being an effective district attorney doesn't build friendships. Like the county jail, it is an office without a constituency. But there are people in Clatsop County who appreciate having a competent prosecutor at a time when big-league drug operations move into our county and when the county will reliably see a murder or sex crime or animal abuser annually.

If this decision is entirely budget-driven, and not a vindictive, personal attack, then presumably, in a spirit of leadership, County Administrator Scott Derickson will be lining up for his 15 percent salary reduction.

Tuesday, May 15, 2007

Spitting in My Face

Marquis pay cut: 'It's spitting in my face'
County budget battle gets personal as leaders cut stipend instead of two other positions
By TOM BENNETT
The Daily Astorian
Tuesday, May 15, 2007


A looming dispute between District Attorney Josh Marquis and Clatsop County officials took an unusual turn Monday when the county budget committee effectively cut his pay.

The committee voted to eliminate the $13,500 stipend the county adds to the district attorney's state salary. The vote came after the panel supported two positions that had been considered for elimination from Marquis' office.

The move came as a shock to Marquis, who called it a "personal insult."

"I can only take this as a sign of extreme disrespect of my office; it's spitting in my face," he said after the committee meeting.

County Commissioner Jeff Hazen, who proposed the cut, said it had nothing to do with any displeasure with Marquis. Hazen said he's long questioned the county's practice of supplementing the district attorney's salary, even before he was elected to the board of commissioners last year.

"I feel this is another unfunded mandate from the state," he said.

The budget committee, made up of the five county commissioners and five citizen members, voted 7-2, with one of the citizen members absent, to cut Marquis' stipend. Commission Chairman Richard Lee and Commissioner Sam Patrick voted no.

The budget committee's vote amounts to a recommendation to the board of commissioners. But with three of the five commissioners - Hazen, Patricia Roberts and Ann Samuelson - supporting the cut, it will likely be approved when the board formally adopts the 2007-08 county budget next month.

The county stipend supplements Marquis' state salary, which is currently $79,512. The stipend is $13,500 this year and was recommended to increase to $13,900 next budget year.

Marquis said he had no warning that the stipend might be on the chopping block at Monday's budget committee meeting, which had appeared to be shaping up into a showdown over two new positions in the district attorney's office.

Marquis came to Monday's meeting armed with data supporting the continued funding of two new positions, which were added to his office just last year. The two personnel, a deputy prosecutor and assistant, were included in the proposed 2007-08 budget document, but with no recommendation from County Manager Scott Derickson whether the budget committee retain them or not.

The committee voted to approve the two positions, but with the warning that they could be cut later if the county is forced to reduce spending in future years because of revenue shortfalls.

After that vote, the committee turned to the district attorney's stipend, a separate line-item in the budget. Hazen expressed his displeasure with the practice, but the panel appeared to be moving on to the next item when Hazen said he wanted to introduce a motion reducing the supplement to zero.

Hazen said he recognized that district attorneys' salaries around the state have been stagnant and supported efforts to get the state to increase them. But he said it was not the county's place to use its own resources to make up for the state's shortfalls.

"It bothers me that the county is subsidizing a state-operated office," he said. "Where does it end?"

After the vote, former budget committee member Burr Allegaert asked the panel to reconsider.

"Over the six years I was on the budget committee, we were all disappointed that the state was not coming up with more money in compensation for the district attorneys," he said. "However, we didn't have the idea that just because we had a philosophical difference over the salary issue, that we would make such a draconian cut."

Marquis, who was re-elected last year to a fourth four-year term as district attorney, said he has no plans not to serve his complete term, but said the loss of his stipend amounts to a 15-percent pay cut that will mean "a significant lifestyle change for me."

The county first added a stipend - of $9,000 - to Marquis' state salary in his second year in office in 1995.

With the exception of the state's three smallest counties, district attorneys in Oregon counties with less than 100,000 population all make the same $79,512 state salary. Of those 24 counties, 12 provide a stipend that averages $14,321.

Statewide, district attorneys have only received cost-of-living adjustments to their state salaries, Marquis said. "In real dollars, I make the same as I did in 1994."

Without his stipend, Marquis said he will make less money than two of his deputy prosecutors.

Marquis said he doesn't believe Hazen's claim that the move isn't directed at him. "This is a way of expressing disrespect and contempt for me," he said.

Earlier this month, County Manager Derickson, at the request of budget committee member Dan Bartlett, drew up a memo with data on the salaries of district attorneys around the state and the pay for other Clatsop County officials, as well as past legal opinions from county counsel Heather Reynolds on the district attorney's duties.

Marquis handles the handful of mental commitment cases that come to the county each year, but it was never in exchange for his stipend, he said; he agreed to handle the cases when the county added another deputy prosecutor to his office several years ago.

It was the two new staff positions, not the stipend, that was expected to generate the most debate over the district attorney's budget Monday. Marquis and Derickson had each presented data giving different pictures of the workload of the district attorney's office.

Statistics presented by the county manager's office, which were originally requested by Hazen and Lee, appeared to show the caseload of the district attorney's office remaining constant over the past several years. Marquis argued Monday that those statistics, prepared by the state District Attorney Case Management, were flawed and didn't give an accurate picture of his office's true workload.

The two positions were added last year because of the increased work Marquis said his office would face with the addition of the third full-time circuit court, which opened early this year.

The budget committee added the two positions last year, but chose to fund them for one year only from the Special Projects Fund, which holds the county's share of state timber dollars. The committee's vote last year to add the positions came with the direction that the county look for more stable funding for the positions in future years.

The proposed 2007-08 budget included the two positions in the general fund. But Derickson added the warning that with operating costs climbing faster than revenue, coupled with a projected drop in timber revenue over the next few years, maintaining spending in the general fund at its current level could be difficult beyond 2009.

Thursday, May 3, 2007

Why Criminal Defense Attorneys Hate Josh, Part IV

I seem to inspire special enmity among criminal defense lawyers. I take this as a compliment, as reflected in Parts I through III of Why Defense Attorneys Hate Josh. This latest edition was posted in a downtown Astoria coffee shop by Seaside defense attorney Ty Settles, who gets credit for identifying himself. Since I'm not Catholic and I have no aspirations to deity or even sainthood status, I'm not sure what this is supposed to mean. But I am wearing a white hat. Like the thong (see Part I), if it was supposed to upset me, it didn't work. I think it's funny.



Part II
Part III