(A)   Every recital in the ordinance codified herein above is adopted into this section.
   (B)   There is hereby established the County Public Defender Department (“the Department”).
   (C)   For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
      BOARD. The County Public Defender Board described and outlined in I.C. 33-40-7-12.
      CASE TERMINATION.  That point in time when any of the following events occur with respect to a contractor working as assigned counsel pursuant to a part-time Public Defender contract:
         (a)   Conclusion of a case by sentencing or plea in the trial court;
         (b)   Dismissal of a case in the trial court;
         (c)   An order taking a case or plea under advisement in the trial court;
         (d)   Any other final order in the trial court;
         (e)   Issuance of a body attachment, fugitive warrant or other warrant for a non-appearing defendant; or
         (f)   Such other events and circumstances as the Board may further define and include within this definition in the future.
      CONTRACTORS. An attorney, attorneys or a group of attorneys, who sign an annual one-year contract with the Board, as approved by the County Public Defender for purposes of providing legal services to indigent defendants in criminal cases.
      COUNTY PUBLIC DEFENDER. An employee of the county who is an attorney at law and meets the requirements for admission to the Indiana Bar and for practice as outlined in I.C. 33-40-1-1. Said COUNTY PUBLIC DEFENDER shall be responsible for the day-to-day management and supervision of the Department and of all contractors (as defined below) of the Department. Such management and supervision responsibilities shall be pursuant to policies and procedures established by the Board and by this section.
      DEPARTMENT. The Clark County, Indiana Public Defender Department.
      EVALUATIONS. The written assessments and reviews that are required to be presented to the Commissioners, every six months, by: the Board after reviewing and assessing the job performance of the County Public Defender; the County Public Defender after reviewing and assessing the job performance of the contractors referred to in the definitions herein; and the County Public Defender after reviewing and assessing the job performance of the employee staff, referred to in the definitions herein, who perform administrative and clerical work in the office of the Department. All such written EVALUATIONS shall be delivered to the office of the Commissioners within 20 days after the close of each calendar quarter.
      PART-TIME PUBLIC DEFENDER CONTRACT. The contract signed and accepted by all contractors and shall be in a form prescribed and approved by the Board. This contract shall be for part-time legal services only and all signers to such contract shall be entitled to maintain a private practice of law during the term of such contract. The contract shall contain the terms of retention for all contractors and shall be subject to termination by the County Public Defender or by the Board consistent with statute, upon a 30-day written notice; however, both the County Public Defender and the Board are strongly and expressly urged to communicate with the Commissioners concerning all termination decisions to the extent that any such termination may ultimately impact the operations of the county government. All contracts shall not be for a term longer than 12 months and shall be, in each successive year, subject to a separate retention decision approved by the County Public Defender after consultation with the Board. Such contract shall also be issued annually subject to the annual appropriation for same from the annual tax levy as fixed and determined by the county fiscal body in any annual budget hereafter approved for the Department.
      SPECIAL PUBLIC DEFENDER.  An attorney retained under contract by the Commissioners on an “as needed” basis when a conflict of interest or other situation requires services by an attorney, in any court case, other than the County Public Defender or a contractor subject to a part-time Public Defender contract.
      STAFF. Employees of the county who are under the direct supervision of the County Public Defender and who shall perform clerical or administrative tasks as assigned by the County Public Defender or by the Board from time to time.
   (D)   Subject to the terms of this section, there is hereby established the County Public Defender Board consisting of three members to be appointed as follows:
      (1)   The county executive shall appoint one member;
      (2)   The judges who exercise felony or juvenile jurisdiction in the county shall appoint, by majority vote, the other two members;
      (3)   The members appointed by the judges may not be from the same political party;
      (4)   The members must be persons who have demonstrated an interest in high quality legal representation for indigent persons;
      (5)   A member may not be a city, town or county attorney, a law enforcement officer, a judge, a court employee;
      (6)   Each member of the Board shall serve a three-year term beginning with the date of the member’s appointment;
      (7)   A member appointed to fill a vacancy holds office for the remainder of the previous member’s term;
      (8)   If a successor has not been appointed by the end of a member’s three-year term, the member continues in office until the member’s successor takes office; and
      (9)   A member may be removed by the appointing authority upon a showing of good cause.
   (E)   I.C. 33-9-15-10.5 through I.C. 33-9-15-11 are incorporated by reference into this section. The Board shall do all things necessary to implement these provisions, to obtain state certification and to maximize the reimbursements available to the county under these statutes through its organization, operations and financial and reporting procedures.
   (F)   The Commissioners hereby state and establish that they have had communicated to them, on numerous occasions, a request from the local judiciary that the judges, themselves, not be responsible for the functions of employment, administrative contracting, hiring and termination decisions for the County Public Defender Department or any Public Defender operations. For these purposes, the following provisions are made effective.
      (1)   The Commissioners hereby adopt and incorporate by reference into this section I.C. 33-40-7 et seq. and hereby approve and activate the legal structures, entities and positions set forth in these statutes effective January 1, 1997 for a period of one year concluding on December 31, 1997; however, the term of the Board members shall be consistent with I.C. 33-40-7-3.
      (2)   Each contractor who is assigned case files by the County Public Defender pursuant to this section and pursuant to the structure and organization set forth and incorporated herein shall be required, as a provision of their contract, to acknowledge that case files are the property of the Department and are not the individual files of the contractor lawyer who has possession of the file. Within seven days of case termination in any assigned case, or upon written or verbal demand of the County Public Defender at any time, such contractor shall deliver the entire case file to the possession and control of the County Public Defender.
      (3)   Each contractor who performs legal work upon a case assigned to him or her shall be required, under provisions, contract, guidelines and procedures established by the Board, to provide time records on not less than a monthly basis for all work performed on any assigned case during the term of the contractor’s contract. Exceptions to this requirement may be granted by the County Public Defender, the Board or by the judge of any court of competent jurisdiction who has assigned the case to the Department. In the case of such an exception being granted by the Board or by any judge, the exception shall be valid only if such judge or the Board communicates the reasons for granting such exception in writing to the County Public Defender who shall, upon receipt of same, forward a copy of such communications to the office of the Commissioners. In cases where the County Public Defender grants an exception to the time recording requirements outlined in this division (F), he or she shall communicate his or her reasons for the exceptions, in writing, to the Board and to the office of the Commissioners.
   (G)   The Commissioners hereby state and establish that their office will make provisions for the allocation of space to the Department and its staff from January 1, 1997 (through the two one-month interim periods described above) through the fully operational date of March 1, 1997 through December 31, 1997.
      (1)   The employment contract of the County Public Defender (distinguished from a part-time Public Defender contract for contractors defined under this section) shall not exceed 12 months during the term of this section and shall be upon such terms and with such compensation as is fixed by the Board and appropriated by the County Council annually, subject only to such exceptions as may be allowed from time to time by participating state authorities.
      (2)   All hiring and supervisory decisions made by the County Public Defender pursuant to I.C. 33-40-7-6 shall be subject to the approval of the Board after staff positions are approved by the Commissioners and the County Council. With reference to these employee positions, a written record of such approval shall be kept and maintained by the Board.
      (3)   The Department shall prepare an annual budget, at the time periods required of all other county government offices pursuant to applicable law for those offices seeking appropriations for operating budgets from the county tax levy in the next succeeding year. The proposed budget shall include the proposed contract amounts for the County Public Defender, staff and each contractor position for the upcoming budgetary year. The proposed budget shall be, first, submitted to the Board for its approval, then to the Commissioners for modification and/or approval prior to the annual submission required by state law to the County Council.
      (4)   The County Public Defender shall be required, during each budgetary year, to personally appear and make quarterly reports to the Commissioners as to administration and operations of the Department during the second Commissioners’ meeting of each month ending a calendar quarter in 1997. The County Public Defender shall also appear before the County Council in each such month and deliver budgetary and fiscal reports concerning the Department.
      (5)   The Board shall be required, on at least one occasion during the first six months of 1997 and one additional occasion during the second six months of 1997 to meet with the Commissioners and the County Council, jointly, to discuss the particulars of the operations of the Department with each body of such elected officials. These meetings shall be for informational and reporting purposes only, and shall be special meetings of each elected body not connected with any request for transfer, additional appropriation, Commissioner assistance or other official action. Judges from the circuit and superior courts of the county shall be notified of such meetings and invited to attend and participate.
      (6)   All contractors who have signed a part-time Public Defender contract shall perform their work under the supervision and management of the County Public Defender, consistent with the procedures and policies established by the Board and consistent with the terms of this section. The County Public Defender shall have the discretion, under the supervision of the Board, to make case assignments and assignments of such other duties to the contractors from time to time. All contractors are required to answer all inquiries of the County Public Defender and to submit such time records, reports and other information as is requested by the County Public Defender during the term of each part-time Public Defender contract. Further, both the County Public Defender and the contractors shall provide such time records, reports and other information as is requested, from time to time, by the Board during the term of this section.
   (H)   The Commissioners hereby expressly incorporate by reference herein I.C. 33-40 et seq. Further, in consideration of the history and difficulties experienced by the county government in 1996 under the resolution, the obligation of the Commissioners to transact the business of the county under I.C. 36-2-2-2 and other authorities cited heretofore and the necessity to provide qualified contractors who will be, by consent of the Commissioners, provided liability protection by the county as a result of any County Public Defender employment contract or any part-time Public Defender contract, the Commissioners enact the following provisions.
      (1)   It is necessary to the public interest that the Commissioners be timely consulted and notified when either the County Public Defender and/or the Board considers the making of, or actually makes, an employment or contractor termination decision.
      (2)   Consistent with I.C. 33-40-7-6, the County Public Defender shall perform the hiring and supervision responsibilities placed upon him or her under said statute; however, it is strongly urged that the County Public Defender, in performing these hiring and supervisory functions, be in frequent consultation with the Board before all such decisions are made. Unless a candidate for a contract position has been interviewed within 60 days preceding the execution of a part-time Public Defender contract, the Commissioners strongly urge and recommend that candidates for any employment or contract position be fully interviewed by the County Public Defender and by the Board and that no exceptions, except in extreme situations, be granted from this interview requirement. To the extent the County Public Defender and/or the Board is subjected to what they, respectively, might deem to be inappropriate suggestion or influence to make a hiring, supervisory or termination decision, in any case, such persons are required as a term and condition of this section to report such contacts to the Commissioners immediately.
      (3)   Any contractor accepting an annual part-time Public Defender contract under this division (H) shall not obtain a property right of any type by such action and is not entitled to retirement and/or longevity benefits that are afforded to county employees; however, consent of the Commissioners is hereby given to include any such contractor within the county’s group health and life insurance plans under such payment terms as are available to other group members, if the contractor chooses to purchase such insurance.
      (4)   All part-time Public Defender contracts shall not extend for a term longer than December 31 of the year in which it is first approved. All termination decisions, with reference to any such contract, shall be made by the County Public Defender and the Board. Notification to the Commissioners is urged before any final termination decision becomes effective. The County Public Defender and the Board, prior to finalization of a termination decision, shall provide the Commissioners with all written documentation or other evidence and reasons that they believe support termination of the employment or the contract at issue.
      (5)   The Board may appoint the County Public Defender pursuant to I.C. 33-40-7-6; however, consistent with all other county appointments, a record of such appointment shall be made in the office of the Commissioners, the Clerk of the Court and in the Clark Circuit Court. The terms of any such appointment, including length of appointment, fixed duties of the appointee, compensation and the like. shall be reduced to written contract form. Absent compliance with these requirements for a written contract and the filing of records of appointment as described, the person so appointed shall be treated as a month-to-month employee in terms of compensation and longevity.
   (I)   The Board shall perform the functions set forth in I.C. 33-40-7-1 through I.C. 33-40-7-12, which are incorporated by reference herein, and shall have the responsibilities of overseeing and managing the operations of the Department in a manner consistent with the terms and policies of this section. The Board’s further direct responsibilities as established by this section are as follows.
      (1)   The Board shall have the responsibility of supervising the work of the County Public Defender in a manner consistent with I.C. 33-40 et seq., the terms of this section and sound and reasonable business operations so that the best interests of the public and the local judiciary are served. The Board may assign such tasks and duties, as it deems appropriate, to the County Public Defender and the County Public Defender shall perform all tasks and duties so assigned.
      (2)   The Board shall be responsible for the provision of legal services to indigent defendants in the county court system and may make operational and management decisions for the County Public Defender to implement that meet the requirements of this division (I) and this section.
      (3)   The Board shall implement guidelines for the enforcement and implementation of the evaluations described in division (C) above.
      (4)   The Board shall develop procedures for the management of any monies paid to the Department from any source including persons previously represented by the contractors.
      (5)   The Board shall have the discretion to develop the provisions of all contracts pursuant to I.C. 33-40-7-8 and shall further incorporate the terms of this section into such contracts.
      (6)   The Board may suspend the County Public Defender or any employee staff member. Contractor or special Public Defender from work and from compensation for noncompliance with: any employment or contract directive; any provision of I.C. 33-40 et seq.; any provision of the county Statement of Employment Policies and Standards for Employees (1993), as amended; or for any act or omission detrimental to the operation of the Department. Such conduct may also be grounds for termination of employment or of a contract hereunder, respectively.
      (7)   The Board shall implement and enforce directives and policies to avoid conflict of interest situations among the contractor attorneys providing services for the Department. The Board may consult with the local judiciary and any state-level legal authorities necessary to establish written guidelines concerning conflicts of interest, office-sharing, appearances of conflicts of interest and the like. Should a situation arise wherein, due to conflicts of interest or other reasons, a special Public Defender must be retained in any given case, the County Public Defender shall report that situation to the Commissioners, in writing. The Commissioners, thereafter, shall have the authority to contract with a separate attorney contractor for services in that case. When such a contract is issued by the Commissioners under this division (I)(7), the Board and Commissioners may request that the court with jurisdiction over such case approve and confirm the contract and issue such orders as are necessary to pay the expenses of the Special Public Defender contract from unappropriated funds of the county.
      (8)   The Board shall develop policies and procedures to implement all other terms and definitions of this section.
      (9)   The Board shall otherwise enforce all terms of this section and do all things necessary to oversee the management of the Department in a manner consistent with this section and I.C. 33-40 et seq.
   (J)   The Commissioners, in consideration of the compliance of the participants set forth and described in this section, shall provide a legal defense and shall pay the expense of any costs, orders or judgments that may be entered by a court of competent jurisdiction against the Board, the County Public Defender, the staff and all contractors described herein, to the extent same are not provided by the liability insurance coverage of the county provided that all persons appointed, hired or subject to a contract under this section are acting within the scope of their responsibilities hereunder, under applicable law or under order of court. For these reasons, the Commissioners hereby state that they have a vested public interest, as the county executive under I.C. 36-2-2-2, in assuring the proper and efficient operation of the Department and in ensuring the proper job and contract performance of all persons associated with the Department. The Commissioners deem it necessary to the public interest that all persons who receive compensation, on a full- or part-time basis or on a contract basis, as a result of the operation of the County Public Defender Department shall be under a continuing duty to make full disclosure to the Commissioners of all facts, information and circumstances involving disputes between the County Public Defender, any part-time contractor or staff member or involving disputes between these individuals and any other persons. It shall be considered a breach of this duty for any such person receiving compensation in this Department to withhold truthful and accurate information from the Commissioners which pertains to employee disputes, discipline, suspension from duties, discharge or any employment-related function.
   (K)   The Commissioners reserve the right to withhold the provision of a legal defense and to withhold payment of the expenses associated therewith if it is determined that any contractor, or the County Public Defender, has not made full, complete and truthful disclosure of all facts, disputes or issues described in division (J) above to the Commissioners prior to the time that a threat of litigation, or actual litigation, arises. In such circumstances, the Commissioners also reserve the right to bring a legal action for reimbursement of expenses incurred as a result of such non-disclosure, or for any act or omission of any employee or contractor that is outside the scope of this section and/or his or her duty under any contract or employment with the Department or is an act or omission that results in legal exposure, liability or expense to the county. Such action may be commenced against the person who failed to disclose information or who committed the acts or omissions described in this division (K).
   (L)   To the extent it is necessary to accomplish the purposes set forth in this section, the signatures of the Commissioners and the Board, below, acknowledge and confirm their agreement, respectively, to share and delegate duties in the manner specified in this section.
   (M)   The term of the provisions of this section and all particulars set forth herein shall commence on March 1, 1997 and conclude on December 31, 1997 unless otherwise extended in writing by the Commissioners. This section amends and restates Ordinance 7-1996 and further supersedes all terms and provisions thereof.
(Ord. 4-1997, passed 4-1-1997)