Bill Text: GA HB238 | 2011-2012 | Regular Session | Comm Sub

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Bill Title: Legal defense for indigents; powers and duties of council; change provisions

Spectrum: Partisan Bill (Republican 7-0)

Status: (Passed) 2011-07-01 - Effective Date [HB238 Detail]

Download: Georgia-2011-HB238-Comm_Sub.html

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11 LC 29 4854S

The Senate Judiciary Committee offered the following substitute to HB 238:

A BILL TO BE ENTITLED
AN ACT

To amend Chapter 12 of Title 17 of the Official Code of Georgia Annotated, relating to legal defense for indigents, so as to reconstitute the membership of the Georgia Public Defender Standards Council and provide for appointing members to such council; to change and clarify certain provisions relative to the powers and duties of the council and director; to clarify the council's responsibility to set policy and standards and the director's responsibility to develop rules and regulations to efficiently administer the provisions of this chapter; to change provisions relating to councilmembers' responsibilities; to provide for the director to appoint circuit public defenders; to change certain annual reporting requirements; to repeal an obsolete effective date Code section; to change provisions relating to the circuit public defender supervisory panel; to change provisions relating to appointing attorneys in conflict of interest cases; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Chapter 12 of Title 17 of the Official Code of Georgia Annotated, relating to legal defense for indigents, is amended by repealing in its entirety Code Section 17-12-3, relating to the creation of the Georgia Public Defender Standards Council, and enacting a new Code Section 17-12-3 to read as follows:

"17-12-3.

(a) There is created the Georgia Public Defender Standards Council to be composed of nine members. Other than county commission members, members of the council shall be individuals with significant experience working in the criminal justice system or who have demonstrated a strong commitment to the provision of adequate and effective representation of indigent defendants.

(b) Effective July 1, 2011, the council shall be reconstituted. The members serving on the council immediately prior to July 1, 2011, shall cease to serve on that date, but such prior members shall be eligible for reappointment to succeed themselves or to fill another position on the council.

(c) The nine members of the council shall be appointed as follows:

(1) Five members shall be appointed by the Governor. The Governor shall appoint three county commissioners who have been elected and are serving as members of a county governing authority in this state. The county commissioner councilmembers appointed by the Governor shall be from different geographic regions of this state. The Governor may solicit recommendations for such appointees from the Association County Commissioners of Georgia. Each county commissioner councilmember shall serve a term of four years; provided, however, that the initial appointments shall be for one, two, and three years, respectively, as designated by the Governor for each appointment, and thereafter, such members shall serve terms of four years. A county commission councilmember shall be eligible to serve so long as he or she retains the office by virtue of which he or she is serving on the council. The Governor shall appoint two other members to the council, one of whom shall be a circuit public defender, who shall serve terms of four years;

(2) Two members shall be appointed by the Lieutenant Governor and each shall serve terms of four years; provided, however, that the initial appointments shall be for one and four years, respectively, as designated by the Lieutenant Governor for each appointment, and thereafter, such members shall serve terms of four years; and

(3) Two members shall be appointed by the Speaker of the House of Representatives and each shall serve terms of four years; provided, however, that the initial appointments shall be for two and three years, respectively, as designated by the Speaker of the House of Representatives for each appointment, and thereafter, such members shall serve terms of four years.

(d) All initial terms shall begin on July 1, 2011, and their successors' terms shall begin on July 1 following their appointment. Any vacancy for a member shall be filled by the appointing authority, and such appointee shall serve the balance of the vacating member's unexpired term. Any member of the council may be appointed to successive terms.

(e) In making the appointments of members of the council who are not county commissioners, the appointing authorities shall seek to identify and appoint persons who represent a diversity of backgrounds and experience and shall solicit suggestions from the State Bar of Georgia, local bar associations, the Georgia Association of Criminal Defense Lawyers, the councils representing the various categories of state court judges in Georgia, and the Prosecuting Attorneys' Council of the State of Georgia, as well as from the public and other interested organizations and individuals within this state. The appointing authorities may solicit recommendations for county commissioners from the Association County Commissioners of Georgia. The appointing authorities shall not appoint a prosecuting attorney as defined in paragraph (6) of Code Section 19-13-51, any employee of a prosecuting attorney's office, or an employee of the Prosecuting Attorneys' Council of the State of Georgia to serve on the council."

SECTION 2.

Said chapter is further amended by revising subsection (a) of Code Section 17-12-4, relating to the authority of the Georgia Public Defender Standards Council, as follows:

"(a) The council:

(1) Shall be a legal entity;

(2) Shall have perpetual existence;

(3) May contract;

(4) May own property;

(5) May accept funds, grants, and gifts from any public or private source, which shall be used to defray the expenses incident to implementing its purposes;

(6) May adopt and use an official seal; and

(7) May establish a principal office;

(8) May hire such administrative and clerical personnel as may be necessary and appropriate to fulfill its purposes; and

(9) Shall have such other powers, privileges, and duties as may be reasonable and necessary for the proper fulfillment of its purposes."

SECTION 3.

Said chapter is further amended by revising subsections (c) and (d) of Code Section 17-12-5, relating to the director and the director's responsibilities, as follows:

"(c) The director shall have and may exercise the following power and authority:

(1) The power and authority to take or cause to be taken any or all action necessary to perform any indigent defense services or otherwise necessary to perform any duties, responsibilities, or functions which the council director is authorized by law to perform or and to exercise any power or authority which the council is authorized by law under subsection (a) of Code Section 17-12-4 to exercise;

(2) The power and authority to make, promulgate, enforce, or otherwise require compliance with any and all rules, regulations, procedures, or directives necessary to perform any indigent defense services,; to carry into effect the minimum standards and procedures policies promulgated by the council, or otherwise necessary; and to perform any duties, responsibilities, or functions which the council is authorized by law under subsection (a) of Code Section 17-12-4 to perform or to exercise any power or authority which the council is authorized by law to exercise; and

(3) The power and authority to assist the council in the performance of its duties, responsibilities, and functions and the exercise of its power and authority.

(d) The director shall:

(1) Prepare and submit to the council a proposed budget for the council. The director shall also prepare and submit an annual report containing pertinent data on the operations, costs, and needs of the council and such other information as the council may require;

(2) Develop such rules, policies, procedures, and regulations, and standards as the director determines may be necessary to carry out the provisions of this chapter and submit these to the council for approval and comply with all applicable laws, standards, and regulations, and submit these to the council for approval;

(3) Administer and coordinate the operations of the council and supervise compliance with rules, policies, procedures, regulations, and standards adopted by the council;

(4) Maintain proper records of all financial transactions related to the operation of the council;

(5) At the director's discretion, solicit and accept on behalf of the council any funds that may become available from any source, including government, nonprofit, or private grants, gifts, or bequests;

(6) Coordinate the services of the council with any federal, county, or private programs established to provide assistance to indigent persons in cases subject to this chapter and consult with professional bodies concerning the implementation and improvement of programs for providing indigent services;

(7) Provide for the training of attorneys and other staff involved in the legal representation of persons subject to this chapter;

(8) Attend all council meetings, except those meetings or portions thereof that address the question of appointment or removal of the director;

(9) Ensure that the expenditures of the council are not greater than the amounts budgeted or available from other revenue sources;

(10) Hire, with the pending approval of the council, a mental health advocate who shall serve as director of the division of the office of mental health advocacy;

(11) Hire, with the pending approval of the council, the capital defender who shall serve as the director of the division of the office of the Georgia capital defender; and

(12) Evaluate each circuit public defender's job performance and communicate his or her findings to the council; and

(13) Perform other duties as the council may assign."

SECTION 4.

Said chapter is further amended by revising subsection (d) of Code Section 17-12-7, relating to councilmembers and responsibilities, as follows:

"(d) Unless otherwise provided in this article, a quorum shall be a majority of the members of the council who are then in office, and decisions of the council shall be by majority vote of the members present, except that a majority of the entire council must shall be required to approve the appointment or removal of the chairperson or removal of a circuit public defender for cause pursuant to Code Section 17-12-20 and for annual approval of an alternative delivery system pursuant to Code Section 17-12-36 and other matters as set forth in Code Section 17-12-36. The vote of two-thirds of the members of the entire council shall be required to remove the chairperson of the council or to overturn the director's decision regarding the removal of a circuit public defender."

SECTION 5.

Said chapter is further amended by revising subsections (b) and (c) of Code Section 17-12-8, relating to approval by council of programs for representation of indigents, as follows:

"(b) The council shall approve and implement programs, services, rules, policies, procedures, regulations, and standards as may be necessary to fulfill the purposes and provisions of this chapter and to comply with all applicable laws governing the rights of indigent persons accused of violations of criminal law.

(c) All rules, regulations, policies, and standards that are promulgated by the council shall be publicly available for review and shall be posted on the council's website. Each rule, regulation, policy, and standard shall identify the date upon which such rule, regulation, policy, and standard took effect."

SECTION 6.

Said chapter is further amended by revising Code Section 17-12-9, relating to continuing legal education for public defenders and staff, as follows:

"17-12-9.

The council shall be authorized to conduct or approve for credit or reimbursement, or both, basic and continuing legal education courses or other appropriate training programs for the circuit public defenders or their staff members. The council, in accordance with such rules policies as it shall adopt, shall be authorized to provide reimbursement, in whole or in part, for the actual expenses incurred by any circuit public defender or their staff members in attending any approved course or training program from funds as may be appropriated or otherwise made available to the council. The circuit public defenders or their staff members shall be authorized to receive reimbursement for actual expenses incurred in attending approved courses or training programs. The council shall adopt rules policies governing the approval of courses and training programs for credit or reimbursement as may be necessary to administer this Code section properly."

SECTION 7.

Said chapter is further amended by revising subsection (c) of Code Section 17-12-10, relating to annual reporting, as follows:

"(c) The council director shall prepare annually a report in order to provide the General Assembly, the Supreme Court, and the Governor with information on the council's assessment of the delivery of indigent defense services, including, but not limited to, the costs involved in operating each program and each governing authority's indigent person verification system, methodology used, costs expended, and savings realized."

SECTION 8.

Said chapter is further amended by revising subsection (f) of Code Section 17-12-10.1, relating to the legislative oversight committee, as follows:

"(f) The legislative oversight committee shall make an annual report of its activities and findings to the membership of the General Assembly, the Chief Justice of the Supreme Court, and the Governor within one week of the convening of each regular session of the General Assembly. The chairperson of such committee shall deliver written executive summaries of such report to the members of the General Assembly prior to the adoption of the General Appropriations Act each year."

SECTION 9.

Said chapter is further amended by repealing Code Section 17-12-13, relating to the effective date of the article, which reads as follows:

"17-12-13.

This article shall become effective on December 31, 2003, except as specified in Code Section 17-12-3."

SECTION 10.

Said chapter is further amended by revising Code Section 17-12-20, relating to the public defender selection panel for each circuit and the appointment of the circuit public defender, as follows:

"17-12-20.

(a) On and after July 1, 2008 2011, there is created in each judicial circuit in this state a circuit public defender supervisory panel to be composed of seven three members, all of whom shall be attorneys who regularly practice in that particular judicial circuit. The Lieutenant Governor, the Speaker of the House of Representatives, and the chief judge of the superior court of the circuit shall each appoint one member. The Governor shall appoint four members, two of which shall be members of the governing authority of the counties within the judicial circuit for which such member is appointed to serve. A member of a governing authority shall be eligible to serve so long as he or she retains the office by virtue of which he or she is serving on the panel. Other than the county commissioner, members one member. In a single county judicial circuit, the chairperson of the governing authority or sole commissioner shall appoint one member; in multicounty judicial circuits, the chairpersons of the governing authorities or sole commissioners shall caucus and appoint one member. When a caucus is needed to appoint a member of the supervisory panel, the chairperson or sole commissioner of the largest county by population in the judicial circuit shall convene the caucus. Members of the circuit public defender supervisory panel shall be individuals with significant experience working in the criminal justice system or who have demonstrated a strong commitment to the provision of adequate and effective representation of indigent defendants. A prosecuting attorney as defined in paragraph (6) of Code Section 19-13-51, any employee of a prosecuting attorney's office, or an employee of the Prosecuting Attorneys' Council of the State of Georgia shall not serve as a member of the circuit public defender supervisory panel after July 1, 2005. On and after July 1, 2008, no employees of the council shall serve as a member of the circuit public defender supervisory panel. Members of the circuit public defender supervisory panel shall reside in the judicial circuit in which they serve. The circuit public defender supervisory panel members shall serve for a term of five years. Any vacancy for an appointed member shall be filled by the appointing authority within 60 days of the vacancy occurring.

(b)(1) By majority vote of its membership, the circuit public defender supervisory panel shall annually elect a chairperson and secretary and determine a quorum for the transaction of business. The chairperson shall conduct the meetings and deliberations of the panel and direct all activities. The secretary shall keep accurate records of all the meetings and deliberations and perform such other duties as the chairperson may direct. The panel may be called into session upon the direction of the chairperson or by the council.

(2) By majority vote of its membership, the circuit public defender supervisory panel shall appoint nominate not more than five people to serve as the circuit public defender in the circuit as provided in this article. The first such appointments shall be made to take office on January 1, 2005, for terms of up to four years. The initial appointments shall be for a term of up to four years. The director shall select the circuit public defender from the panel's list of nominees. A circuit public defender shall serve a term for up to four years and may be appointed for successive terms but shall not be reappointed if he or she was removed pursuant to subsection (c) of this Code section.

(c) A circuit public defender may be removed for cause by a majority vote of the council and may be removed without cause by a vote of two-thirds of the members of the entire council the director. If a circuit public defender wants to appeal such removal, he or she may appeal the decision to the council. By a vote of two-thirds of the members of the entire council, the council may overturn the director's decision. Any appeal regarding a removal request shall be submitted to the council within 15 days of the effective date of the removal, and the council shall take action in hearing the appeal at its next regularly scheduled meeting and take final action within 30 days thereafter. A circuit public defender who has been removed by the director who has filed an appeal with the council shall continue to serve as the circuit public defender until the council reaches a decision on the appeal.

(d) A circuit public defender supervisory panel may convene at any time during its circuit public defender's term of office and shall convene at least semiannually annually for purposes of reviewing the circuit public defender's job performance and the performance of the circuit public defender office. The council director and circuit public defender shall be notified at least two weeks in advance of the convening of the circuit public defender supervisory panel. The circuit public defender shall be given the opportunity to appear before the circuit public defender supervisory panel and present evidence and testimony. The chairperson shall determine the agenda for the semiannual annual review process, but, at a minimum, such review shall include information collected pursuant to subsection (c) of Code Section 17-12-24, usage of state and local funding, expenditures, and budgeting matters. The chairperson shall make an annual report on or before the thirtieth day of September of each year concerning the circuit public defender supervisory panel's findings regarding the job performance of the circuit public defender and his or her office to the council director on a form provided to the panel by the council director. If at any time the circuit public defender supervisory panel finds that the circuit public defender is performing in a less than satisfactory manner or finds information of specific misconduct, the circuit public defender supervisory panel may by majority vote of its members adopt a resolution seeking review of their findings and remonstrative action by the council director. Such resolution shall specify the reason for such request. All evidence presented and the findings of the circuit public defender supervisory panel shall be forwarded to the council director within 15 days of the adoption of the resolution. The council director shall initiate action on the circuit public defender supervisory panel's resolution at its next regularly scheduled meeting and take final action within 60 30 days thereafter of receiving the resolution. The council director shall notify the circuit public defender supervisory panel, in writing, of any actions taken pursuant to submission of a resolution under this subsection.

(e) If a vacancy occurs for the position of circuit public defender, the chief judge of the superior court of the circuit director shall appoint an interim circuit public defender to serve until the circuit public defender supervisory panel director has appointed a replacement. Within 30 days of the vacancy occurring, the The circuit public defender supervisory panel shall appoint meet and nominate not more than five people to serve as a replacement circuit public defender within three months of the occurring of the vacancy. The replacement circuit public defender shall not be any individual who has been removed by the council pursuant to subsection (c) of this Code section. The director shall select the replacement circuit public defender from the panel's list of nominees."

SECTION 11.

Said chapter is further amended by revising subsections (a) and (c) of Code Section 17-12-22, relating to the procedure for appointment of attorneys for indigent defendants in the event a public defender's office has a conflict of interest, as follows:

"(a) The director, with input from the council, shall establish a procedure for providing legal representation in cases where the circuit public defender office has a conflict of interest. Such procedure may include, but shall not be limited to, the appointment of individual counsel on a case-by-case basis or the utilization of another circuit public defender office. Whatever procedure the council director establishes for each circuit's conflict of interest cases shall be adhered to by the circuit public defender office. It is the intent of the General Assembly that the council director consider the most efficient and effective system to provide legal representation where the circuit public defender office has a conflict of interest."

"(c) Attorneys who seek appointment in conflict cases shall have such experience or training in the defense of criminal cases as is necessary in light of the complexity of the case to which he or she is appointed and shall meet such qualifications, regulations, and standards for the representation of indigent defendants as are established by the council."

SECTION 12.

Said chapter is further amended by revising subsection (d) of Code Section 17-12-23, relating to cases in which public defender representation is required, as follows:

"(d) A city or county may contract with the circuit public defender office for the provision of criminal defense for indigent persons accused of violating city or county ordinances or state laws. If a city or county does not contract with the circuit public defender office, the city or county shall be subject to all applicable rules, regulation, policies, and standards adopted by the council for representation of indigent persons in this state."

SECTION 13.

Said chapter is further amended by revising paragraph (4) of subsection (c) of Code Section 17-12-30, relating to classification of personnel, as follows:

"(4) Any reduction in salary shall be made in accordance with the salary range for the position and the policies, rules, or regulations adopted by the council."

SECTION 14.

Said chapter is further amended by revising paragraph (2) of subsection (a) of Code Section 17-12-36, relating to alternate delivery systems, as follows:

"(2) The council, by majority vote of the entire council, determines that the delivery system meets or exceeds its rules, regulations, policies, and standards, including, without limitation, caseload standards, as the council adopts;"

SECTION 15.

Said chapter is further amended by revising subsection (b) of Code Section 17-12-80, relating to verification of indigency required, as follows:

"(b) The council shall establish rules and regulations policies and standards to determine approval of an indigent person verification system and shall annually provide written notification to the Georgia Superior Court Clerks' Cooperative Authority as to whether or not a governing authority has an approved indigent person verification system."

SECTION 16.

This Act shall become effective on July 1, 2011.

SECTION 17.

All laws and parts of laws in conflict with this Act are repealed.