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Sunday, September 15, 2019  Spokane, Washington  Est. May 19, 1883
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Facing turnover, huge caseloads and complaints, Spokane County considers turning Public Defender’s Office into nonprofit

Thomas Krzyminski, director of the Spokane County Public Defender’s Office. photo byLeAnn Bjerken. (The Journal of Business / Courtesy)
Thomas Krzyminski, director of the Spokane County Public Defender’s Office. photo byLeAnn Bjerken. (The Journal of Business / Courtesy)

Spokane County appears poised to overturn decades of precedent and hand the responsibility of representing indigent suspects to lawyers who work for a nonprofit rather than the county.

The change would mean ending the retirement, benefits and salaries of the 60 attorneys and about 30 support staff for the Spokane County Public Defender’s Office, which has struggled to keep up with caseloads as prosecutors funnel the state’s highest number of felony files its way.

“As government employees and as elected officials, it’s our duty to do the people’s business while living within the people’s means,” Commissioner Josh Kerns said. “We have not made a final decision. But, if we can find a way to provide a service to our constituents that we are required to deliver … in a more cost-efficient way, I think our citizens would expect us to explore that.”

Kerns has been looking at the nonprofit model in Snohomish County and Commissioner Al French said he has studied a nonprofit model in Chelan County. French said if he can get his colleagues to agree, he wants to send out a request for proposal later this year.

“It’s an opportunity other counties have instituted and it’s worked well,” French said. “From what I’ve seen, I’d certainly be in favor of moving that direction.”

Tom Krzyminski, director of the Public Defender’s Office, delivered the news to his attorneys and staff on Wednesday before Labor Day weekend: The jobs as they knew them could be coming to an end.

“I would say that people were generally quiet,” Krzyminski said. “A few questions were asked. My guess would be there was an initial shock in that.”

Gordon Smith, a staff representative for the Washington Council of County and City Employees, which represents the public defender support staff, said his members are scared for their livelihoods.

“It’s pretty nerve-wracking to hear this, that their jobs are going to be contracted out,” Smith said. “There would be scores of years of experience going out the door.”

Krzyminski, who was appointed last December to a second four-year term, wouldn’t comment when asked if he supported the idea of moving to a nonprofit public defender’s office.

“I support what is in the best interests of our clients. I support what is in the best interest of our attorneys,” he said. “I don’t believe labeling something as a nonprofit solves the issues we face.”

‘Good ol’ boys club’

The proposal to end the public defender’s office comes at a time of huge caseloads and unprecedented turnover in an organization that has received complaints about alleged infighting, favoritism and gender discrimination.

According to public records and interviews by The Spokesman-Review, some 42 of 60 attorneys have retired, quit or been fired since Krzyminski took over in late 2013.

“Obviously, there is something wrong with the culture of any organization if you have that kind of turnover,” employment lawyer Kevin Roberts said. “In general, if you see that kind of turnover in a professional field, that’s a red flag.”

The brewing discord was made public last month when former public defender Heather Weir wrote in a court filing that turnover in the public defender’s office was at least partially to blame for the plight of 72-year-old William B. Mitchell, who has served more than 30 months in jail without any substantive movement of his case.

Krzyminski defended his leadership and said his reign coincided with the Washington Supreme Court setting a caseload limit of 150 felony files per attorney during a 12-month period. Before, the state bar association had listed caseload limits, but counties mostly ignored them.

In theory, the caseload limits were designed to ensure that defendants received proper representation. But county officials have not always responded with more resources to help public defenders stay under the caseload limits, Krzyminski said.

“That, in my opinion, significantly changed the landscape of public defense,” he said. “We have the highest number of felony filings in the state. We have to address those numbers and it’s not easy.”

As of Aug. 26, the office had to again stop assigning cases because the public defenders had exceeded their limits, he said. Asked about the turnover under his leadership, Krzyminski would not address specific issues.

“I will say I am client-focused,” he said. “What is the best interest of the client? Some people have different skill sets. Maybe you will do better in a different area.

“I assume if you are leaving, then there is a reason and it’s what you want. And that we played a part in developing your legal skills.”

Former public defender Al Rossi left the office in 2016 after an extended medical leave. He’d worked under several directors in his 33 years. For Rossi, working as a public defender was the only job he had.

“The whole time I was there, until Krzyminski came along, I would say maybe 20 people left, if that many,” Rossi said. “And with Krzyminski … (the turnover) was just amazing.”

Rick Wallis, who left the county office to work as a public defender for the city of Spokane, did not mince words when asked about Krzyminski’s management style.

Krzyminski “has abhorrent leadership skills,” Wallis wrote in his 2017 exit interview obtained through a records request. “Open disrespect for people he does not like (and) is openly anti-union. Lowest office morale in the 20 years I have worked there.”

In an interview, Wallis said the office once had interns who worked for up to two years before a job opened up. Now, the office sheds attorneys who opt against making a career out of the job despite generous benefits, including health insurance and a retirement system.

“The culture of the office changed with Tom,” Wallis said. “Experience wasn’t appreciated. It was more like you’ve been here so long, you are dead weight.”

As a shop steward, Wallis said he often sat in with other attorneys who brought workplace grievances against Krzyminski.

“It felt a lot different when a woman was involved than a man,” Wallis said. “A lot of women felt very uncomfortable, like they were being picked on because of their gender. I know there were multiple complaints to HR and through exit interviews.”

One of those attorneys who filed a complaint was former public defender Brooke Hagara, who filed a tort claim against Spokane County in 2016. She wrote that she had a sexual relationship with Krzyminski before he became director in 2013. Hagara wrote that she ended the relationship and her new boss “was not happy about it.”

She filed a complaint with the Equal Employment Opportunity Commission after she believed she was passed over for two promotions while she was on maternity leave.

Hagara also claimed that male colleagues received pay raises while female colleagues had their pay reduced; that male colleagues with months of experience were promoted to supervisory roles above women with years of experience; and that attorneys were forced to sign reports under threat of termination.

The county responded by hiring an independent investigator, who concluded most of the allegations in Hagara’s lawsuit were unfounded.

At the time, her attorney, Kevin Roberts, said Hagara had hoped that county leaders would have fixed the problem prior to her filing the lawsuit seeking $500,000 in damages.

Krzyminski was “setting requirements for certain types of cases for promotion, and he’s also the one that assigns lawyers to those cases,” Roberts said in 2016. “In terms of that, at least in the county Defender’s Office, the good ol’ boys club is in full effect.”

The county later settled Hagara’s lawsuit before trial. “The settlement amount was confidential and she’s permitted to tell others that the matter has been mutually resolved,” Roberts, her attorney, said in a recent interview.

It’s one of three known cases in which the county paid money to settle claims. Along with the Hagara case and a settlement with Rossi, which he said he could not discuss, the third settlement went to Steven Clark, who is the son of former Superior Court Judge Ellen Kalama Clark and the late defense attorney John Clark. Steven Clark worked as a public defender under Krzyminski from 2015 until this past March.

“Yes, there was a union grievance and it was resolved amicably,” Clark said. “But I’m not sure I could comment further.”

Asked about the culture of the office, Clark said he has long ties with Krzyminski.

“I left that office because I had a better opportunity and not specifically about Tom,” Clark said. “We had our disagreements, yes, but I still respect him very much.”

Anna Nordtvedt, 59, has worked 13 years for the public defender’s office after working 20 years in the private sector. She has seen dozens of her colleagues leave the office and fewer leaving because of retirement.

“I’ve heard a lot of complaints and I’ve had complaints at different times,” Nordtvedt said. “But I haven’t had any issues in the last several years. I think being older and having had experience on the outside, things don’t bother me as they do other people.”

The attorneys who have left did so for a variety of reasons, she said.

“I haven’t talked to anybody who is unhappy after leaving the office,” she said. “I think some people who left feel they have been wronged. Some were looking for a change. One young guy got a job at a bank.”

The job carries a great deal of stress, and attorneys work for clients who are not always sympathetic figures.

“Would there be things I change? Yeah,” Nordtvedt said. “But I don’t know what it’s like to run an office like that. I might be worse.”

Krzyminski disputed the suggestion made by several former attorneys that he held a different standard for women than men. He noted he made it a priority to hire women and he also hired the county’s first chief deputy public defender, Karen Lindholdt. She, too, is among the list of attorneys who left the office.

“I’m proud of my record” of hiring women, he said. Women attorneys “bring a starkly different perspective in a lot of cases. For the most part, anyone can be a lawyer if they go to law school. But not everybody can be a public defender.”

Lindholdt, prompted by Krzyminski, reached out to The Spokesman-Review to comment about his leadership style. She worked three years as his chief deputy.

“I guarantee you more women attorneys were promoted than men,” she said. “I find it offensive that someone suggests women were treated differently.”

Lindholdt now is working in private practice. She said she left the public defender’s office because of the stress and lack of resources, she said.

“The caseload is crushing,” she said. “Having 150 felonies is essentially like being in an emergency room. It’s a very difficult job, and not everyone is cut out for that job. I was burned out from the attorneys and the triage. It was so overwhelming to manage the system that was so overloaded.”

Former public defender Diane Grecco worked briefly under Krzyminski and Lindholdt before she left in 2013, but has maintained regular contact with her colleagues in the office.

When she started at the office in the late 1990s, “people just didn’t leave. They were coveted jobs. You couldn’t blast someone out of them,” Grecco said. “I’ve seen what is going on. I really didn’t think it could get worse after I left, but I must have gotten out when the getting was good.”

Grecco said she has high respect for Krzyminski as a defense attorney.

“But that doesn’t mean you are a good administrator,” she said. “Unfortunately, when I was there, the public defender’s office, for lack of a better word, was always the red-headed stepchild of the county.

“It’s always hard to go in and get money. Nobody understands the job you are doing. The community doesn’t support putting money into representing people who are committing crimes.”

Stevens County Prosecutor Tim Rasmussen said several of the attorneys who left the public defender’s office are now representing defendants in his county. Rasmussen formerly worked as a deputy Spokane County prosecutor under Steve Tucker.

“The best indicator of a well-run office that is adequately supported … is the stability of the workforce,” he said. “Prosecutors and defense attorneys are not fungible. As an administrator, you try to keep the people who are the most experienced. People are the most important asset in any division in government.”

‘Incredibly bad idea’

But commissioners French and Kerns appear ready to move toward a contract with a nonprofit agency to handle public defense.

Kerns said he likes the Snohomish County model for several reasons. For one, Snohomish County’s model has a pool of public defenders and a smaller number of attorneys who do criminal defense for profit, which generates revenue that would not have to come from taxpayers.

“They were swearing by it. It works. It’s great,” Kerns said. “It gets around roadblocks for caseload standards. It gives them the flexibility. I think it’s definitely something we explore.”

Kerns explained that if the public defenders exceed their caseload limits, they can then assign cases to the defense attorneys who are doing for-profit defense work.

But Clark, the defense attorney, said he doubts the idea would work in Spokane County.

“Do I think (the public defender’s office) could be run differently? Sure,” he said. “Do I think opening it up to a nonprofit would work? Absolutely not. With a county our size, that’s an incredibly bad idea.”

Smith, the union representative, said he did some simple math and divided the budget given Spokane public defenders by the number of felony and misdemeanor cases they handled. He compared those figures to the money Snohomish County gives its nonprofit.

“It costs (Snohomish) $1,650 per case. For Spokane County, it’s about $750 a case,” Smith said. “On the surface, it does not make sense. It really seems odd.”

Kerns acknowledged that the case-by-case cost numbers “were rough. I’d like to do a deeper dive on that,” he said. “It all depends on who comes forward with that” request for proposal. “It’s hard to know what that (cost) will be at this point.”

French said one of the aspects he likes about the idea is that the nonprofit would be available to obtain grants that are not available for county-run public defender’s offices.

“Snohomish County has been doing it for a long time and they are larger than us,” French said. “We are trying to improve the criminal justice system. We’ve got to provide the service but do it in a fiscally responsible fashion.”

Asked about the 90 county employees who could lose their jobs, French said that question must be addressed.

“We haven’t made a decision. Until we do, there is no need to discuss those impacts,” French said. “Management reserves the right to make management decisions.”

Smith, the union representative, said state law mandates that the county negotiate with the employees about the loss of those jobs. He said he believes the issues with the caseloads are coming from the high volume of felony cases filed by prosecutors.

As of Friday, Spokane County had filed 3,082 felony cases this year compared to only 2,549 in King County, which has about four times more residents.

“I don’t know if crime is higher in Spokane or it’s a penchant by the prosecutor’s office to up-charge cases that could be misdemeanors as felonies,” Smith said.

Spokane County Prosecutor Larry Haskell bristled this week when asked why his office often files felony charges on, for instance, simple drug-possession cases involving homeless people.

“The more contacts (officers) have, the more referrals they send to the prosecutor’s office,” Haskell said.

Asked whether he believes he has discretion to file the drug possession charges as misdemeanors, Haskell wouldn’t directly answer.

“We are going to file the charges that meet the statutory definitions,” he said.

French acknowledged that each part of the criminal justice system impacts the others. But he would not blame Haskell’s office for the high caseloads being placed onto public defenders.

“The prosecutor is doing his job as he sees fit,” French said. “If the public says this is who we want to make the decision, I’m going to work with whoever they elect in office.”

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