Russ Memo

Kitsap County Prosecuting Attorney’s Office Russell D. Hauge Prosecuting Attorney

Memorandum

Carol I. Maves Office Administrator Christian C. Casad Case Management Division Chief Claire A. Bradley Felony Division Chief Jeffrey J. Jahns District/Municipal Division Chief Timothy A. Drury Juvenile Division Chief

TO:

Commissioner Steve Bauer, Chair, Kitsap County Board of County Commissioners Commissioner Jan Angel, Kitsap County Board of County Commissioners Commissioner Josh Brown, Kitsap County Board of County Commissioners Nancy Buonanno-Grennan, Kitsap County Administrator

FROM:

Russell D. Hauge, Kitsap County Prosecuting Attorney

REPLY TO:

Adult Criminal & Administrative Divisions

CC:

Shawn Gabriel, Director of Administrative Services Charisse Dahlke, Interim Budget Manager Stephanie Pinard, Budget Analyst November 17, 2008

DATE: RE:

Supplemental Budget Presentation, Fiscal Year 2009 2.2% “Cut” From Prosecutor’s Office General Fund Appropriation

Jacquelyn M. Aufderheide Civil/Child Support Division Chief

Budget Manual and the annual budget call letter. County Administrative Services (AS)

www.kitsapgov.com/pros

issued a supplement to the budget call requesting that all General Fund (GF) departments

This Office has submitted its 2009 Budget Proposal in conformance with Kitsap County’s

submit “scenarios” describing the consequences of a 2.2% reduction in the amount originally requested.1

In presentations to the Citizens Budget Committee and to the Board of

Commissioners, we described the consequences of such a cut. In our final budget hearing on Nov. 3, 2008, the Board of Commissioners requested that we resubmit our budget documents in what AS refers to as a “Program Format.” The Board also asked that we specify and describe the consequences of a 2.2% reduction in our requested appropriation. My staff has prepared the documents necessary to restate our budget in program format. outlines the scenario we face if cut.

This supplement

2

1

A copy of the AS letter is attached for reference. Under NO circumstances would we in any way diminish the prosecution services we provide the cities of Bremerton, Poulsbo, Port Orchard, and Bainbridge Island. The cities pay for those services. They represent revenue from outside the General Fund. 2

Adult Criminal & Administrative Divisions • 614 Division Street, MS-35 • Port Orchard, Washington 98366-4681 • (360) 337-7174 • FAX (360) 337-4949 Juvenile Criminal Division • 614 Division Street, MS-35 • Port Orchard, Washington 98366-4681 • (360) 337-5500 • FAX (360) 337-5509 Special Assault Unit • 614 Division Street, MS-35 • Port Orchard, Washington 98366-4681 • (360) 337-7148 • FAX (360) 337-7229 Bainbridge Island Municipal Court Division • 614 Division Street, MS-35 • Port Orchard, Washington 98366 • (360) 337-7174 • FAX (360) 337-4949 Bremerton Municipal Court Division • 614 Division Street, MS-35 • Port Orchard, Washington 98366 • (360) 473-2334 • FAX (360) 473-2303 Port Orchard Municipal Court Division • 614 Division Street, MS-35 • Port Orchard, Washington 98366-4681 • (360) 337-7174 • FAX (360) 337-4949 Poulsbo Municipal Court Division • 614 Division Street, MS-35 • Port Orchard, Washington 98366-4681 • (360) 337-7174 • FAX (360) 337-4949 Civil Division • 614 Division Street, MS-35A • Port Orchard, Washington 98366-4681 • (360) 337-4992 • FAX (360) 337-7083 Child Support Division • 614 Division Street, MS-35 • Port Orchard, Washington 98366-4681 • (360) 337-7020 • FAX (360) 337-5733

Prosecutor 2009 Supplemental Budget Presentation November 18, 2008 Page 2 ________________________________

2.2% of our proposed general fund budget is approximately $165,000. This sum represents at least one full time Deputy Prosecuting Attorney (DPA) and one Legal Assistant (LA).3 If forced to adopt this scenario, we will cut those positions from our Civil Division, General Fund Cost Center 9086. In our presentations to the Citizens’ Budget Committee and the Board of Commissioners, we represented that if layoffs were necessary, we would make them in our Criminal Divisions. However, in light of information recently developed by AS regarding revenue available from outside the General Fund, I cannot in good conscience, as the elected Prosecutor for Kitsap County, take that course. I have determined that to choose to maintain our level of service to civil clients while impairing our ability to respond to criminal behavior would be a breach of my duty. This document explains that conclusion. Since 1995 we have published a list of the categories of crime in rank order of priority.4

We

drafted and published the list to give notice to the public of where we would invest our always scarce resources.

There will never be enough in a public budget to pursue all

offenders for every offense. It’s a triage tool, developed for the situation now facing the county.

This list was first developed with the assistance of a group of citizens I chose as representative Kitsap County. It was reviewed and refreshed in 2003 with the help of another citizens’ group, this one assembled by Leadership Kitsap. The first category on the list— “Violent crime against children, including sexual assaults and domestic violence (DV)”— receives our closest attention and will as long as we are able to do our jobs. At the bottom of the list at number 14 is “Prosecution of traffic infractions.”

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Personnel are all we have left to “cut.” We provide professional services—our people are our product. We might be able to find something to cut in our budget for supplies and equipment. However, we trimmed what fat we might have had there long ago. If we are to cut, layoffs are the only way to get to the mark set by the Board of Commissioners. 4 The priorities are published in the Prosecutor’s Office Mission Statement and Standards and Guidelines. This publication is available on the County’s website in the Prosecuting Attorney’s section.

Prosecutor 2009 Supplemental Budget Presentation November 18, 2008 Page 3 ________________________________

We are now effectively addressing the first ten items on the list. Tenth is “[Prosecution of] Major traffic offenses not a function of drug or alcohol abuse.” We are not doing everything we could with Category Ten offenses, but our approach works. The vast majority of the crimes in category ten are the different varieties of driving with a suspended license (DWLS). We have never been allocated the resources to prosecute all DWLS allegations. Absent aggravating circumstances, we handle these crimes with bail forfeitures, diversion agreements or some other alternative. We devote very few attorney hours to categories 11 through 14.

Our current budget submission—the submission without a 2.2% cut—asks for no increases in personnel and preserves the status quo. As explained to the Citizens’ Budget Committee and the Board of Commissioners, a cut of 2.2% would impair our ability to prosecute the next level of crimes: “Economic crime (Priority proportional to adverse economic impact: the greater the impact—whether on an individual, individuals or business interest, the greater our devotion of resources to seeking sanctions).”

This category covers all kinds of theft other

than robbery or burglary. Included are major shoplifting rings, embezzlement, and identity theft. With one less legal assistant to manage the records and files and one less attorney to charge and prosecute the cases, we would not be able maintain our standards of practice in this category.

We have already had to make some money-based compromises in the property crime category. We refer simple bad-check cases to a diversion service that focuses on restitution. First-time, minor felony property offenders also get a shot a making things right through diversion contracts. In both kinds of cases, our alternatives allow us to exercise significant control over the offender and the outcome.

However, in both cases we forego formal

prosecution because our resources are short. Serious property offenders, like identity thieves, now get our full attention. But full attention requires a full complement of lawyers and

Prosecutor 2009 Supplemental Budget Presentation November 18, 2008 Page 4 ________________________________ support staff.5 Someone has to build and keep track of the criminal files. Someone has to read the reports and determine whether and what to charge. All members of this office work very hard. They cannot do any more with any less.

Simply slowing the pace of prosecution solves nothing. Washington’s Court Rules require that we either charge or release an in-custody offender within 72 hours. Once charged, we have 60 to 90 days to bring the case to trial. Imagine that the detectives in the Sheriff’s Office devote the time and energy to break up an identity theft operation. They arrest the suspects and take them to jail. Often these criminals have long records and few, if any, ties to our community. If released, we are likely to never see them again. Now imagine our office short of resources and simply unable to review the reports in time to make a charging decision. Three days after the arrest, the Judge asks if we are ready. We have to say no, and the defendant walks away. Or perhaps we have found the resources to charge, and the defendant stays in jail; or against all odds the defendant can be found when we get our act together. On the 60th day after charging (the 90th day if the defendant is not in custody), the Judge will ask us the next critical question: are we ready for trial? If we are not ready to go—we have not arranged for the witnesses, the production of evidence, or there is some other shortfall—the case will in all likelihood be dismissed with prejudice. This means the defendant walks, and we cannot file another charge. The case is over. Our Supreme Court is very clear: Lack of resources does not justify delay in criminal proceedings.

We were prepared to undertake that course if necessary. 6

Criminal Division staff is to lay off Civil Division staff.

The alternative to laying off Cutting the budget of our Civil

Division, Cost Center 9086, would reduce the impact of the Prosecutor’s Office on the 5

We have been short a lawyer for approximately three months as a result of the hiring freeze. We have been able to maintain our standard of performance because we plan for a single absence at any one time. Within the last week, another attorney has left for extended maternity leave. When she returns in 8-12 weeks, another attorney in the Criminal Divisions will leave for the birth of her child. If our vacant position remains unfilled, we will actually be short two lawyers well into the spring or summer of 2009. And by then I’m sure we will have another absence to deal with.

Prosecutor 2009 Supplemental Budget Presentation November 18, 2008 Page 5 ________________________________ General Fund. But at the time of our budget presentations we assumed that a lay-off in the Civil Division would actually increase the size of the potential General Fund deficit. We are obligated to provide services to the County’s departments, and those services are necessary. If we fail to provide legal counsel and representation, the County department will have to buy legal services on the open market at a price far beyond cost of our Civil Division lawyers and staff. We could slow the pace of our services by extending deadlines or putting off meetings. But time is money. A legal problem not addressed can quickly turn into dollars owed. And we presumed those dollars would come from the General Fund.

However, until the day of our budget hearing, we misunderstood the economics of our budget situation. We found out that morning that we actually generate over $900,000.00 of potential revenue for the General Fund—far more than necessary to cover the required 2.2% cut. This sum represents the value of the civil legal services we provide to agencies that get their operating money from sources other the County General Fund. There is a fair and simple way to charge and collect what should be the fees for our services. To date, the Board of Commissioners has chosen not to pursue it.

The County’s General Fund is supported almost entirely by sales tax and property tax. That is why our financial situation is so precarious. Property taxes are capped at a level less than necessary to keep up with inflation, and sales taxes fluctuate with the health of the economy. The services most visible and important to the public—public safety, land use, and management of local government finance—rely almost solely on the General Fund. Any revenue from a source other than County’s portion of sales and property taxes supports the delivery of those most visible and important services.

Our Civil Division, the lawyers and staff who handle all the legal issues generated by the operation of government, can add almost a million dollars to the General Fund. A system

6

Our Child Support Unit is funded entirely by the State of Washington. A cut there would not impact the County General Fund.

Prosecutor 2009 Supplemental Budget Presentation November 18, 2008 Page 6 ________________________________ developed by County Administrative Services, currently used to fund other County departments, would generate the revenue. Using actual demand as the measure, the model apportions the cost of Civil Division, now wholly supported by the General Fund, to the users of the service. Some of our clients rely on the General Fund just like us. However, many are many Non-General Fund Departments, primarily supported by revenue from other sources. We would ask the Non-General Fund Departments to pay for their fair share of the Civil Division. They would use their revenue to reimburse the General Fund for services rendered.

It is a system very similar to our contracts with Bremerton, Bainbridge Island, Poulsbo, and Port Orchard. The cities have their own revenue streams. We charge and prosecute crimes in their municipal courts. The cities write checks to the County covering the costs of those services. Those checks are deposited in the County General Fund, and the money is available for the use of all County departments. Moreover, the County now uses the same system to fund its Information Services department—the provider of our computers and networking. Information Services (IS) supports its budget through what are referred to as interfund transfers. Each of the departments using IS, whether supported by the General Fund or some other source, has a line item in its budget representing the cost of its services. The line item is a charge against the budget of the user department and represents revenue for IS.

In our system, there would be no charge to General Fund departments. The cost of the services we provide to them would remain a line item in our budget. An interfund transfer from one General Fund department to another is a wash. It is no more than transferring money from one pocket to another. And we are not talking about an accounting trick. The object is to grow the General Fund, not change the budget work sheets.

We are worth the charges that would be levied. As has been discussed, we do necessary work. Timely, solid legal advice facilitates delivery of services and saves money. And we would pass on only the cost of the services. If the Non-General Fund Departments had to purchase services on the open market, the cost would be far greater. According to the budget

Prosecutor 2009 Supplemental Budget Presentation November 18, 2008 Page 7 ________________________________ spreadsheets shared with me, the charge would not greatly impact the efficiency of any department.

If it’s too much, we can do without the entire amount.

All we need is

permission to pass on just less than 20% of the cost of our work—the revenue needed to offset the 2.2% cut to our operations. Anything more than our 2.2% would in any event go into the General Fund for the use of all County departments. We are not asking for a budget increase. The money could be spent on things like Sheriff’s Deputies and Juvenile Probation Officers.

To collect this revenue, what’s needed is a straightforward resolution by the Board of Commissioners. However, my understanding is that the Board has thus far decided to not pursue this funding source. Rather than allow us to generate almost a million dollars for the General Fund, the Prosecutor’s Office is asked to cut.

The current situation is this: The County’s General Fund, precarious and necessary for essential services, is subsidizing operations funded from other sources. If there is a need for that subsidy, it does not justify erosion of our ability to respond to crimes. We can’t slow down our criminal practice; we can cut back on civil services—and should if we’re not being paid. We can take longer to respond to work requests, and phone calls can go unanswered for longer periods. Moreover, civil legal services are available from other sources. Criminal prosecution is the sole province of the county’s elected prosecutor. If the County chooses to forego revenue that’s readily available, I choose to maintain our ability to do what only we can do: hold criminal offenders accountable to the people of Washington and Kitsap County.