Bill Text: GA SB42 | 2009-2010 | Regular Session | Engrossed

---

Bill Title: Georgia Indigent Defense Act of 2003; extensively revise; provide for the Georgia Public Standards Agency; director; powers/duties

Spectrum: Partisan Bill (Republican 5-0)

Status: (Engrossed - Dead) 2009-04-03 - House Withdrawn, Recommitted [SB42 Detail]

Download: Georgia-2009-SB42-Engrossed.html

---

09 SB42/CSFA/2

Senate Bill 42

By: Senators Smith of the 52nd, Wiles of the 37th, Hill of the 4th, Hamrick of the 30th and Hill of the 32nd

AS PASSED SENATE

A BILL TO BE ENTITLED
AN ACT

To amend Chapter 12 of Title 17 of the Official Code of Georgia Annotated, the "Georgia Indigent Defense Act of 2003," so as to extensively revise said Act; to reconstitute the Georgia Public Defender Standards Council with new membership; to change the powers and duties of the council and provide that it shall be an advisory body; to provide for the Georgia Public Defender Standards Agency as an agency of the state; to provide for its director and the powers and duties and operations of the agency and the director; to provide that the director shall have the control and management of the agency and shall exercise supervision with respect to circuit public defenders and carry out other duties formerly vested in the council; to provide for procedures for the removal of a circuit public defender from office; to provide for other related matters; to provide for effective dates; 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, the 'Georgia Indigent Defense Act of 2003,' is amended by revising Code Sections 17-12-1 through 17-12-10.1, which Code sections relate to the Georgia Public Standards Council and its director and operations, as follows:

"17-12-1.

(a) This chapter shall be known and may be cited as the 'Georgia Indigent Defense Act of 2003.'

(b) The Georgia Public Defender Standards Council shall be an independent agency advisory body within the executive branch of state government.

(c) The Georgia Public Defender Agency shall be an independent agency within the executive branch of state government. The council agency shall be responsible for assuring that adequate and effective legal representation is provided, independently of political considerations or private interests, to indigent persons who are entitled to representation under this chapter.

17-12-2.

As used in this chapter, the term:

(0.5) 'Agency' means the Georgia Public Defender Agency under the direction of the director.

(1) 'Assistant public defender' means an attorney who is employed by any circuit public defender.

(2) 'Circuit public defender' means the head of a public defender office providing indigent defense representation within any given judicial circuit of this state.

(3) 'Circuit public defender office' means the office of any of the several circuit public defenders.

(4) 'Council' means the Georgia Public Defender Standards Council.

(5) 'Director' means the director of the Georgia Public Defender Agency Standards Council.

(6) 'Indigent person' or 'indigent defendant' means:

(A) A person charged with a misdemeanor, violation of probation, or a municipal or county offense punishable by imprisonment who earns less than 100 percent of the federal poverty guidelines unless there is evidence that the person has other resources that might reasonably be used to employ a lawyer without undue hardship on the person or his or her dependents;

(B) A juvenile charged with a delinquent act or a violation of probation punishable by detention whose parents earn less than 125 percent of the federal poverty guidelines unless there is evidence that the juvenile or his or her parents have other resources that might reasonably be used to employ a lawyer without undue hardship on the juvenile, his or her parents, or the parent's dependents; and

(C) A person charged with a felony who earns or, in the case of a juvenile, whose parents earn, less than 150 percent of the federal poverty guidelines unless there is evidence that the person has other resources that might reasonably be used to employ a lawyer without undue hardship on the person, his or her dependents, or, in the case of a juvenile, his or her parents or the parent's dependents.

In no case shall a person whose maximum income level exceeds 150 percent of the federal poverty level or, in the case of a juvenile, whose household income exceeds 150 percent of the federal poverty level be an indigent person or indigent defendant.

(7) 'Legislative oversight committee' means the Legislative Oversight Committee for the Georgia Public Defender Standards Council Agency.

(8) 'Public defender' means an attorney who is employed in a circuit public defender office or who represents an indigent person pursuant to this chapter.

17-12-3.

(a) There is created the Georgia Public Defender Standards Council to be composed of 15 members.

(b) Not later than 60 days after the effective date of this subsection, the council shall be reconstituted as a new advisory body with new members appointed in 2009. The members serving on the council immediately prior to the effective date of this subsection shall cease to serve on the effective date of this subsection, but such prior members shall be eligible for reappointment in 2009 to succeed themselves or to fill another position on the council. Ten members of the council shall be appointed as follows:

(1) Two members shall be appointed by the Governor, and four members shall be appointed by the Lieutenant Governor, and the Speaker of the House of Representatives, the Chief Justice of the Supreme Court of Georgia, and the Chief Judge of the Georgia Court of Appeals as further set forth in paragraph (2) of this subsection. Except as provided in paragraph (3.1) of this subsection, the 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. The members shall serve terms of four years; provided, however, that the members appointed from the even-numbered judicial administration circuits shall serve initial terms of six years and thereafter shall serve terms of four years;

(2) The members appointed pursuant to paragraph (1) of this subsection shall be chosen so that each of the ten judicial administration districts in this state is represented and so that each appointing authority shall rotate the particular judicial administration district for which he or she is responsible for appointing. The appointments shall be as follows:

(A) For the initial appointments in 2009:

(i) The Governor shall appoint one person who resides in judicial administration district 1 and one person who resides in judicial administration district 2;

(ii) The Lieutenant Governor shall appoint one person who resides in judicial administration district 3 and, one person who resides in judicial administration district 4, one person who resides in judicial administration district 7, and one person who resides in judicial administration district 8; and

(iii) The Speaker of the House of Representatives shall appoint one person who resides in judicial administration district 5, and one person who resides in judicial administration district 6;, one person who resides in judicial administration district 9, and one person who resides in judicial administration district 10;

(iv) The Chief Justice of the Supreme Court of Georgia shall appoint one person who resides in judicial administration district 7 and one person who resides in judicial administration district 8, except that on and after July 1, 2008, the Lieutenant Governor shall make such appointments; and

(v) The Chief Judge of the Georgia Court of Appeals shall appoint one person who resides in judicial administration district 9 and one person who resides in judicial administration district 10, except that on and after July 1, 2008, the Speaker of the House of Representatives shall make such appointments;

(B) For the first subsequent council appointments:

(i) The Governor shall appoint one person who resides in judicial administration district 3 and one person who resides in judicial administration district 4;

(ii) The Lieutenant Governor shall appoint one person who resides in judicial administration district 5, and one person who resides in judicial administration district 6, one person who resides in judicial administration district 9, and one person who resides in judicial administration district 10; and

(iii) The Speaker of the House of Representatives shall appoint one person who resides in judicial administration district 1, one person who resides in judicial administration district 2, one person who resides in judicial administration district 7, and one person who resides in judicial administration district 8;.

(iv) The Chief Justice of the Supreme Court of Georgia shall appoint one person who resides in judicial administration district 9 and one person who resides in judicial administration district 10, except that on and after July 1, 2008, the Lieutenant Governor shall make such appointments; and

(v) The Chief Judge of the Georgia Court of Appeals shall appoint one person who resides in judicial administration district 1 and one person who resides in judicial administration district 2, except that on and after July 1, 2008, the Speaker of the House of Representatives shall make such appointments;

(C) For the second subsequent council appointments:

(i) The Governor shall appoint one person who resides in judicial administration district 5 and one person who resides in judicial administration district 6;

(ii) The Lieutenant Governor shall appoint one person who resides in judicial administration district 1, one person who resides in judicial administration district 2, one person who resides in judicial administration district 7, and one person who resides in judicial administration district 8; and

(iii) The Speaker of the House of Representatives shall appoint one person who resides in judicial administration district 3, one person who resides in judicial administration district 4, one person who resides in judicial administration district 9, and one person who resides in judicial administration district 10;.

(iv) The Chief Justice of the Supreme Court of Georgia shall appoint one person who resides in judicial administration district 1 and one person who resides in judicial administration district 2, except that on and after July 1, 2008, the Lieutenant Governor shall make such appointments; and

(v) The Chief Judge of the Georgia Court of Appeals shall appoint one person who resides in judicial administration district 3 and one person who resides in judicial administration district 4, except that on and after July 1, 2008, the Speaker of the House of Representatives shall make such appointments;

(D) For the third subsequent council appointments:

(i) The Governor shall appoint one person who resides in judicial administration district 7 and one person who resides in judicial administration district 8;

(ii) The Lieutenant Governor shall appoint one person who resides in judicial administration district 3, one person who resides in judicial administration district 4, one person who resides in judicial administration district 9, and one person who resides in judicial administration district 10;

(iii) The Speaker of the House of Representatives shall appoint one person who resides in judicial administration district 1, and one person who resides in judicial administration district 2;, one person who resides in judicial administration district 5, and one person who resides in judicial administration district 6.

(iv) The Chief Justice of the Supreme Court of Georgia shall appoint one person who resides in judicial administration district 3 and one person who resides in judicial administration district 4, except that on and after July 1, 2008, the Lieutenant Governor shall make such appointments; and

(v) The Chief Judge of the Georgia Court of Appeals shall appoint one person who resides in judicial administration district 5 and one person who resides in judicial administration district 6, except that on and after July 1, 2008, the Speaker of the House of Representatives shall make such appointments; and

(E) For the fourth subsequent council appointments:

(i) The Governor shall appoint one person who resides in judicial administration district 9 and one person who resides in judicial administration district 10;

(ii) The Lieutenant Governor shall appoint one person who resides in judicial administration district 1 and, one person who resides in judicial administration district 2, one person who resides in judicial administration district 5, and one person who resides in judicial administration district 6;

(iii) The Speaker of the House of Representatives shall appoint one person who resides in judicial administration district 3 and, one person who resides in judicial administration district 4;, one person who resides in judicial administration district 7, and one person who resides in judicial administration district 8.

(iv) The Chief Justice of the Supreme Court of Georgia shall appoint one person who resides in judicial administration district 5 and one person who resides in judicial administration district 6, except that on and after July 1, 2008, the Lieutenant Governor shall make such appointments; and

(v) The Chief Judge of the Georgia Court of Appeals shall appoint one person who resides in judicial administration district 7 and one person who resides in judicial administration district 8, except that on and after July 1, 2008, the Speaker of the House of Representatives shall make such appointments.

All subsequent appointments shall continue on, with the entire cycle starting over again as specified in subparagraph (A) of this paragraph;

(3) The eleventh member shall be one circuit public defender who shall serve on the council. After the initial appointments as set forth in paragraph (4) of this subsection, the circuit public defender to serve on the council shall be elected by a majority vote of all the circuit public defenders. The circuit public defender councilmember shall serve terms of two years;

(3.1) Four members of the council shall be county commissioners who have been elected and are serving as members of a county governing authority in this state. The county commissioner councilmembers shall be appointed by the Governor on or before July 1, 2008, the effective date of this paragraph and 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 terms of four years; provided, however, that the initial appointments shall be for one, two, three, and four 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;

(4) Except as provided in paragraph (3.1) of this subsection, all initial appointments shall be made to become members of the council on July 1, 2003 not later than 60 days after the effective date of this paragraph, and their successors shall become members of the council on July 1 following their appointment. The initial appointees from the even-numbered judicial administration circuits shall serve until June 30, 2009. Notwithstanding the provisions of paragraph (3) of this subsection, the initial member representing the circuit public defenders shall be made by the Supreme Court of Georgia. The person representing the circuit defender position on the initial council shall be engaged on a full-time basis in the provision of criminal defense to the indigent;

(5) Any vacancy for a member appointed pursuant to paragraphs (1), (2), and (3.1) of this subsection shall be filled by the appointing authority, and such appointee shall serve the balance of the vacating member's unexpired term; and

(6) Any vacancy for a member appointed pursuant to paragraph (3) of this subsection shall be the successor to the circuit public defender as set forth in subsection (e) of Code Section 17-12-20.

(c) In making the appointments for ten members of the council as provided in paragraph (2) of subsection (b) of this Code section, 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, state and 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 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.

(d) This Code section shall become effective on July 1, 2003, for purposes of making the initial appointments to the council.

17-12-4.

(a) The council agency:

(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;

(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.

(b) The council director shall establish auditing procedures as may be required in connection with the handling of public funds. The state auditor shall be authorized and directed to make an annual audit of the transactions of the council agency and to make a complete report of the same to the General Assembly. The annual audit shall disclose all moneys received by the council agency and all expenditures made by the council agency by revenue source, including all programs and special projects itemized in the General Appropriations Act. The annual audit shall include an itemization by revenue source of encumbered and reserved money. Revenue sources shall include each county governing authority's expenditures which are made pursuant to Code Sections 17-12-31 and 17-12-32 and city or county expenditures which are made pursuant to subsection (d) of Code Section 17-12-23. The state auditor shall also make an audit of the affairs of the council agency at any time when requested to do so by a majority of the council the director or by the Governor or General Assembly.

(c) The council agency may not provide compensation from its funds to any administrative or clerical personnel employed by the council agency if the personnel are then receiving retirement compensation from any retirement or pension fund created by Title 47 to provide compensation for past services as a judicial officer, prosecuting attorney, indigent defense attorney, court officer, or law enforcement officer except for county or municipal retirement funds.

17-12-5.

(a) To be eligible for appointment as the director, a candidate shall be a member in good standing of the State Bar of Georgia with at least seven years' experience in the practice of law. The director shall be selected on the basis of training and experience and such other qualifications as the council deems appropriate. The director shall be appointed by the Governor and shall serve at the pleasure of the Governor.

(b)(1) The director shall work with and provide support services and programs for circuit public defender offices and other attorneys representing indigent persons in criminal or juvenile cases in order to improve the quality and effectiveness of legal representation of such persons and otherwise fulfill the purposes of this chapter. Such services and programs shall include, but shall not be limited to, technical, research, and administrative assistance; educational and training programs for attorneys, investigators, and other staff; assistance with the representation of indigent defendants with mental disabilities; assistance with the representation of juveniles; assistance with death penalty cases; and assistance with appellate advocacy.

(2) The director may establish divisions within the office to administer the services and programs as may be necessary to fulfill the purposes of this chapter. The director shall establish a mental health advocacy division and the Georgia capital defender division.

(3) The director may hire and supervise such staff employees and may contract with outside consultants on behalf of the office as may be necessary to provide the services contemplated by this chapter.

(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 agency is authorized by law to perform or to exercise any power or authority which the council agency is authorized by law to exercise; and

(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 promulgated by the council agency, or otherwise necessary to perform any duties, responsibilities, or functions which the council agency is authorized by law 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 the budget for the council agency. The director shall also prepare and submit an annual report containing pertinent data on the operations, costs, and needs of the council agency and such other information as the council Governor may require;

(2) Develop such rules, policies, procedures, regulations, and standards as may be necessary to carry out the provisions of this chapter 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 agency 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 agency;

(5) At the director's discretion, solicit and accept on behalf of the council agency 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 agency 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 agency 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.

17-12-6.

(a) The council agency shall assist the public defenders throughout the state in their efforts to provide adequate legal defense to the indigent. Assistance may include:

(1) The preparation and distribution of a basic defense manual and other educational materials;

(2) The preparation and distribution of model forms and documents employed in indigent defense;

(3) The promotion of and assistance in the training of indigent defense attorneys;

(4) The provision of legal research assistance to public defenders; and

(5) The provision of such other assistance to public defenders as may be authorized by law.

(b) The council director:

(1) Shall be the fiscal officer for the circuit public defender offices and shall account for all moneys received from each governing authority; and

(2) Shall collect, maintain, review, and publish records and statistics for the purpose of evaluating the delivery of indigent defense representation in Georgia.

17-12-7.

(a) All members of the council shall at all times act in the best interest of indigent defendants who are receiving legal representation under the provisions of this chapter.

(b) All members of the council shall be entitled to vote on any matter coming before the council unless otherwise provided by law or by rules adopted by the council concerning conflicts of interest.

(c) Each member of the council shall serve until a successor has been appointed. Removal of council members shall be for cause and shall be in accordance with policies and procedures adopted by the council.

(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 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 an alternative delivery system pursuant to Code Section 17-12-36 and other matters as set forth in Code Section 17-12-36.

(e) The council shall meet at least quarterly and at such other times and places as it deems necessary or convenient for the performance of its duties.

(f) The council shall elect a chairperson and such officers from the members of the council as it deems necessary and shall adopt such rules for the transaction of its business as it desires. The chairperson and officers shall serve for a term of two years and may be removed without cause by a vote of two-thirds of the members of the entire council and for cause by a majority vote of the entire council. The chairperson shall retain a vote on all matters except those in which the chairperson has a conflict of interest or the removal of the chairperson for cause. The council shall keep and maintain minutes of all council meetings.

(g) The members of the council shall receive no compensation for their services but shall be reimbursed for their actual expenses incurred in the performance of their duties as members of the council. Any expenses incurred by the council shall be paid from the general operating budget of the council agency.

17-12-8.

(a) The council shall approve recommend the development and improvement of programs which provide legal representation to indigent persons and juveniles.

(b) The council shall approve and implement recommend 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 recommended by the council and adopted, with or without changes, by the director shall be publicly available for review and shall be posted on the council's agency's website. Each rule, regulation, policy, and standard shall identify the date upon which such rule, regulation, policy, and standard took effect.

17-12-9.

The council agency 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 agency, in accordance with such rules as it the director 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 agency. 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 director shall adopt rules governing the approval of courses and training programs for credit or reimbursement as may be necessary to administer this Code section properly.

17-12-10.

(a) The council director shall prepare annually a report of its the agency's activities in order to provide the General Assembly, the Governor, and the Supreme Court of Georgia with an accurate description and accounting of the preceding year's expenditures and revenue, including moneys received from cities and county governing authorities. Such report shall include a three-year cost projection and anticipated revenues for all programs defined in the General Appropriations Act.

(b) The council director shall provide to the General Assembly, the Governor, and the Supreme Court of Georgia a detailed analysis of all grants and funds, whether public or private, applied for or granted, together with how and in what manner the same are to be utilized and expended.

(c) The council director shall prepare annually a report in order to provide the General Assembly and the Governor with information on the council's director'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.

17-12-10.1.

(a) There is created the Legislative Oversight Committee for the Georgia Public Defender Agency Standards Council which shall be composed of eight persons: three members of the House of Representatives appointed by the Speaker of the House of Representatives, three members of the Senate appointed by the Senate Committee on Assignments or such person or entity as established by Senate rule, and one member of the House of Representatives and one member of the Senate appointed by the Governor. The members of such committee shall be selected within ten days after the convening of the General Assembly in each odd-numbered year and shall serve until their successors are appointed.

(b) The Speaker of the House of Representatives shall appoint a member of such committee to serve as chairperson, and the Senate Committee on Assignments or such person or entity as established by Senate rule shall appoint one member of the committee to serve as vice chairperson during each even-numbered year. The Senate Committee on Assignments or such person or entity as established by Senate rule shall appoint a member of such committee to serve as chairperson, and the Speaker of the House of Representatives shall appoint one member to serve as vice chairperson during each odd-numbered year. Such committee shall meet at least three times each year and, upon the call of the chairperson, at such additional times as deemed necessary by the chairperson.

(c) It shall be the duty of such committee to review and evaluate:

(1) Information on new programs submitted by the council;

(2) Information on rules, regulations, policies, and standards proposed by the council;

(3) The strategic plans for the council agency;

(4) Program evaluation reports and budget recommendations of the council agency;

(5) The fiscal impact of fees and fines on counties;

(6) The reports submitted pursuant to Code Section 15-21A-7 in order to identify, among other things, opportunities to reduce or consolidate fees, fines, and surcharges; and

(7) Such other information or reports as deemed necessary by such committee.

(d) The council and director shall cooperate with such committee and provide such information or reports as requested by the committee for the performance of its functions.

(e) The council director shall submit its the agency's budget estimate to the director of the Office of Planning and Budget in accordance with subsection (a) of Code Section 45-12-78.

(f) The legislative oversight committee shall make an annual report of its activities and findings to the membership of the General Assembly 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.

(g) The members of such committee shall receive the allowances authorized for legislative members of legislative committees. The funds necessary to pay such allowances shall come from funds appropriated to the House of Representatives and the Senate.

(h) The legislative oversight committee shall be authorized to request that a performance audit of the council agency be conducted."

SECTION 1A.

Said chapter is further amended by revising subsection (a) of Code Section 17-12-11, relating to mental health advocacy division, duties, responsibilities, and management, as follows:

"(a) The mental health advocacy division shall represent in any court in this state indigent persons found not guilty by reason of insanity at the time of the crime or found mentally incompetent to stand trial and shall be the successor to the office of mental health advocacy created by Article 4 of this chapter as it existed on June 30, 2008. Any assets or resources of the office of mental health advocacy shall be transferred to the council agency. The mental health advocacy division office shall serve all counties of this state."

SECTION 1B.

Said chapter is further amended by revising subsection (a) of Code Section 17-12-12, relating to Georgia capital defender division and duties, responsibilities, and management, as follows:

"(a) The Georgia capital defender division shall represent all indigent persons charged with a capital felony for which the death penalty is being sought in any court in this state and shall be the successor to the Office of the Georgia Capital Defender created by Article 6 of this chapter as it existed on June 30, 2008. Any assets or resources of the Office of the Georgia Capital Defender shall be transferred to the council agency. The Georgia capital defender division shall serve all counties of this state."

SECTION 2.

Said chapter is further amended by revising Code Sections 17-12-12.1, relating to the capital defender division, and 17-12-13, relating to effective date, as follows:

"17-12-12.1.

(a) If there is a conflict of interest such that the Georgia capital defender division is unable to defend any indigent person accused of a capital felony for which the death penalty is being sought, the director shall determine and appoint counsel to represent the defendant. The director shall establish the contractual agreement with the defendant's counsel for payment of representing the defendant, and, when feasible and prudent, a flat fee structure shall be utilized.

(b) A maximum of two attorneys shall be paid by the council agency pursuant to a contractual agreement or at an hourly rate established by the council director with state funds appropriated to the council agency. State funds shall be appropriated to the council agency for use by the Georgia capital defender division for the first $150,000.00 paid for each death penalty case. Funding for attorney's fees and expenses between $150,000.01 and $250,000.00 for each death penalty case shall be paid through state appropriations for 75 percent of such attorney's fees and expenses, and the county governing authority where the indictment was returned shall pay 25 percent of such attorney's fees and expenses. Funding for all attorney's fees and expenses in excess of $250,000.00 for each death penalty case shall be paid through state appropriations for 50 percent of such attorney's fees and expenses, and the county governing authority where the indictment was returned shall pay 50 percent of such attorney's fees and expenses.

(c) The council agency, with the assistance of the Georgia capital defender division, shall establish guidelines for all expense requests for cases in which the death penalty is sought, including, but not limited to, attorney's fees, expert witness fees, investigative fees, travel and accommodation expenses, and copy and transcription costs.

(d) A county governing authority may provide supplemental compensation to counsel appointed pursuant to this Code section.

17-12-13.

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

SECTION 3.

Said chapter is further amended by revising Code Section 17-12-20, relating to selection and removal of circuit public defenders, as follows:
"17-12-20.

(a) On and after July 1, 2008, there is created in each judicial circuit in this state a circuit public defender supervisory panel to be composed of seven members. 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 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 agency 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.

"(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 director.

(2) By majority vote of its membership, the circuit public defender supervisory panel shall appoint 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. A circuit public defender 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 as provided in Code Section 17-12-20.1.

(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 for purposes of reviewing the circuit public defender's job performance and the performance of the circuit public defender office. The council 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 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 30 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 shall initiate action on the circuit public defender supervisory panel's resolution at its next regularly scheduled meeting and take final action within 60 days thereafter. The council 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 shall appoint an interim circuit public defender to serve until the circuit public defender supervisory panel has appointed a replacement. The circuit public defender supervisory panel shall appoint 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."

SECTION 4.

Said chapter is further amended by adding a new Code section to read as follows:

"17-12-20.1.

(a) Whenever the director determines that an investigation of a circuit public defender should be made as a result of criminal charges, alleged misconduct in office, or alleged incapacity of the circuit public defender to perform the functions of the office, the director shall notify the Governor. The Governor shall appoint two circuit public defenders and a member of the council who shall constitute a committee to conduct an investigation. The members of any such committee shall receive no compensation for their services but shall be reimbursed for any expenses incurred in connection with the investigation from funds available to the agency. Any member of the committee shall be authorized to administer oaths to any witness before the committee. The committee shall make a report and recommendation to the Governor within 30 days from the date of the appointment of the committee.

(b) If the committee by majority vote recommends the suspension of the circuit public defender, the Governor shall be authorized to suspend the circuit public defender for a period of up to 90 days. The Governor may extend such period of suspension once for an additional 30 days. Upon a recommendation of suspension, the Governor shall also be authorized to appoint a special prosecutor to bring a removal petition against the circuit public defender pursuant to subsection (c) of this Code section based upon the evidence provided by the committee.

(c) A removal petition provided for in subsection (b) of this Code section shall be filed in the superior court of the county of the circuit public defender's residence. The charges shall be presented to the court in writing, with a copy provided to the circuit public defender at least two weeks prior to trial. Grounds for removal from office shall be any sufficient cause, including criminal charges, misconduct in office, or incapacity to perform the functions of the office. The petition shall be heard by a superior court judge; provided, however, that upon the motion of the circuit public defender, the facts shall be tried by a jury."

SECTION 5.

Said chapter is further amended by revising Code Section 17-12-22, relating to provision of counsel in event of a conflict of interests, as follows:
"17-12-22.

(a) The council director 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 when feasible. 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.

(b) The circuit public defender shall establish a method for identifying conflicts of interest at the earliest possible opportunity. If there is a conflict of interest such that the circuit public defender office cannot represent a defendant and an attorney who is not employed by the circuit public defender office is appointed, such attorney shall have a contractual relationship with the council agency to represent indigent persons in conflict of interest cases, and such relationship may include, but shall not be limited to, a flat fee structure.

(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 agency."

SECTION 6.

Said chapter is further amended by revising subsection (d) of Code Section 17-12-23, relating to representation by circuit public defenders, 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 agency for representation of indigent persons in this state."

SECTION 7.

Said chapter is further amended by revising subsection (c) of Code Section 17-12-24, relating to operations of circuit public defenders, as follows:

"(c) The circuit public defender shall keep and maintain appropriate records, which shall include the number of persons represented, including cases assigned to other counsel based on conflict of interest; the offenses charged; the outcome of each case; the expenditures made in carrying out the duties imposed by this chapter; and any other information requested by the council agency."

SECTION 8.

Said chapter is further amended by revising Code Section 17-12-26, relating to budget estimates, as follows:

"17-12-26.

The council director shall prepare and submit to the director of the Office of Planning and Budget its a budget estimate necessary for fulfilling the purposes of this chapter in accordance with Code Section 45-12-78. The council agency shall be authorized to seek, solicit, apply for, and utilize funds from any public or private source to use in fulfilling the purposes of this chapter."

SECTION 9.

Said chapter is further amended by revising paragraph (2) of subsection (a), subsection (b), and subsection (h) of Code Section 17-12-27, relating to public defender staff, as follows:

"(2) Subject to funds being appropriated by the General Assembly or otherwise available, additional assistant public defenders as may be authorized by the council director. In authorizing additional assistant public defenders, the council director shall consider the caseload, present staff, and resources available to each circuit public defender and shall make authorizations as will contribute to the efficiency of individual circuit public defenders and the effectiveness of providing adequate legal defense for indigent defendants.

(b) Each assistant public defender appointed pursuant to subsection (a) of this Code section shall be classified based on education, training, and experience. The jobs of assistant public defenders and the minimum qualifications required for appointment or promotion to each job shall be established by the council agency based on education, training, and experience and in accordance with the provisions of Code Sections 17-12-30 and 17-12-34."

"(h) Notwithstanding the provisions of subsection (g) of this Code section, an employee of a local public defender office who was an employee of the office on June 30, 2004, and who becomes a circuit public defender or an employee of a circuit public defender office before July 1, 2005, may elect, with the consent of the former employer and the consent of the council agency, to remain an employee of the entity for which the employee worked as a local public defender; and such entity shall be his or her employer for all purposes, including, without limitation, compensation and employee benefits. The right to make an election pursuant to this subsection shall expire on July 1, 2005. The council agency shall reimburse the appropriate entity for compensation, benefits, and employer contributions under the federal Social Security Act, but the total payment from the council agency to the entity on behalf of the employee shall not exceed the amount otherwise payable to or for the employee under the circumstance where the employee had become a state employee."

SECTION 10.

Said chapter is further amended by revising subsection (a) of Code Section 17-12-28, relating to circuit public defender investigators, as follows:

"(a) Subject to the provisions of this Code section, the circuit public defender in each judicial circuit is authorized to appoint one investigator to assist the circuit public defender in the performance of his or her official duties in the preparation of cases for trial. Subject to funds being appropriated by the General Assembly or otherwise available, the circuit public defender in each judicial circuit may appoint additional investigators as may be authorized by the council director. In authorizing additional investigators, the council director shall consider the caseload, present staff, and resources available to each circuit public defender and shall make authorizations as will contribute to the efficiency of individual circuit public defenders and the effectiveness of circuit public defenders throughout the state in providing adequate legal defense for indigent defendants."

SECTION 11.

Said chapter is further amended by revising subsection (a) of Code Section 17-12-29, relating to circuit public defender personnel, as follows:

"(a) Each circuit public defender is authorized to employ administrative, clerical, and paraprofessional personnel as may be authorized by the council director based on funds appropriated by the General Assembly or otherwise available; provided, however, that each circuit public defender shall be authorized not less than two such personnel. In authorizing administrative, clerical, and paraprofessional personnel, the council director shall consider the caseload, present staff, and resources available to each circuit public defender and shall make authorizations as will contribute to the efficiency of individual circuit public defenders in providing effective criminal defense for indigent defendants."

SECTION 12.

Said chapter is further amended by revising paragraphs (1) through (5) of subsection (c) of Code Section 17-12-30, relating to classification and compensation of public defender staff, as follows:

"(c)(1) The council director shall establish salary ranges for each state paid position authorized by this article or any other provision of law. Salary ranges shall be similar to the state-wide and senior executive ranges adopted by the State Merit System of Personnel Administration and shall provide for minimum, midpoint, and maximum salaries not to exceed the maximum allowable salary. In establishing the salary ranges, all amounts will be rounded off to the nearest whole dollar. The council director may, from time to time, revise the salary ranges to include across-the-board increases which the General Assembly may from time to time authorize in the General Appropriations Act.

(2) The circuit public defender shall fix the compensation of each state paid employee appointed pursuant to this article in accordance with the job to which the person is appointed and the appropriate salary range.

(3) All salary advancements shall be based on quality of work, training, and performance. The salary of state paid personnel appointed pursuant to this article may be increased at the first of the calendar month following the annual anniversary of the person's appointment. No employee's salary shall be advanced beyond the maximum established in the applicable pay range.

(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 director.

(5) The compensation of state paid personnel appointed pursuant to this article shall be paid in equal installments by the council agency as provided by this subsection from funds appropriated for such purpose. The council director may authorize employees compensated pursuant to this Code section to participate in voluntary salary deductions as provided by Article 3 of Chapter 7 of Title 45."

SECTION 13.

Said chapter is further amended by revising Code Section 17-12-32, relating to local government contracts for personnel, as follows:

"17-12-32.

The governing authority of any county or municipality within the judicial circuit which provides additional personnel for the office of circuit public defender may contract with the council agency to provide such additional personnel in the same manner as is provided for state paid personnel in this article. Any such personnel shall be considered state employees and shall be entitled to the same fringe benefits as other state paid personnel employed by the circuit public defender pursuant to this article. The governing authority of such county or municipality shall transfer to the council agency such funds as may be necessary to cover the compensation, benefits, travel, and other expenses for such personnel."

SECTION 14.

Said chapter is further amended by revising Code Section 17-12-36, relating to alternative service delivery systems, and Code Section 17-12-37, relating to effective date, as follows:

"17-12-36.

(a) The council may permit a A judicial circuit composed of a single county to may continue in effect an alternative delivery system if approved to do so under the law in effect prior to the effective date of this subsection. to the one set forth in this article if:

(1) The delivery system:

(A) Has a full-time director and staff and had been fully operational for at least two years on July 1, 2003; or

(B) Is administered by the county administrative office of the courts or the office of the court administrator of the superior court and had been fully operational for at least two years on July 1, 2003;

(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;

(3) The governing authority of the county comprising the judicial circuit enacts a resolution expressing its desire to continue its delivery system and transmits a copy of such resolution to the council not later than September 30, 2004; and

(4) The governing authority of the county comprising the judicial circuit enacts a resolution agreeing to fully fund its delivery system.

(b) A judicial circuit composed of a single county may request an alternative delivery system only one time; provided, however, that if such judicial circuit's request for an alternative delivery system was disapproved on or before December 31, 2004, such judicial circuit may make one further request on or before September 1, 2005. The council shall allow such judicial circuit to have a hearing on such judicial circuit's request.

(c) The council shall make a determination with regard to continuation of an alternative delivery system not later than December 1, 2005, and if the council determines that such judicial circuit's alternative delivery system does not meet the standards as established by the council, the council shall notify such judicial circuit of its deficiencies in writing and shall allow such judicial circuit an opportunity to cure such deficiencies. The council shall make a final determination with regard to continuation of an alternative delivery system on or before December 31, 2005. Initial and subsequent approvals of alternative delivery systems shall be by a majority vote of the entire council.

(d) Any circuit whose alternative delivery system is disapproved at any time shall be governed by the provisions of this article other than this Code section.

(e)(b) In the event an alternative delivery system is approved, the council in operation, the director shall annually review the operation of such system and determine whether such system is meeting the standards as established by the council director and is eligible to continue operating as an approved alternative delivery system. In the event the council director determines that such system is not meeting the standards as established by the council director, the council director shall provide written notice to such system of the deficiencies and shall provide such system an opportunity to cure such deficiencies.

(f)(c) In the event an alternative delivery system is approved in operation, it shall keep and maintain appropriate records, which shall include the number of persons represented; the offenses charged; the outcome of each case; the expenditures made in providing services; and any other information requested by the council director.

(g)(d) In the event the council director disapproves an alternative delivery system either in its initial application or on annual review, such system may appeal such decision to the Supreme Court of Georgia under such rules and procedures as shall be prescribed by the Supreme Court.

(h)(e) An approved alternative delivery system shall be paid by the council agency, from funds available to the council agency, in an amount equal to the amount that would have been allocated to the judicial circuit for the minimum salary of the circuit public defender, the assistant circuit public defenders, the investigator, and the administrative staff, exclusive of benefits, if the judicial circuit was not operating an alternative delivery system.

17-12-37.

Reserved. This article shall become effective on January 1, 2005; provided, however, that the council and the circuit public defender selection panels shall be authorized to take administrative actions as may be necessary or appropriate to prepare for and phase-in full implementation of this article on or after December 31, 2003."

SECTION 15.

Said chapter is further amended by revising subsection (c) of Code Section 17-12-51, relating to repayment of attorney's fees as a condition of probation, as follows:

"(c) If a defendant who is represented by a public defender, who is paid for entirely by the state, enters a plea of nolo contendere, first offender, or guilty or is otherwise convicted, the court may impose as a condition of probation repayment of all or a portion of the cost for providing legal representation and other costs of the defense if the payment does not impose a financial hardship upon such defendant or such defendant's dependent or dependents. Such defendant shall make such payment through the probation department to the Georgia Public Defender Standards Council Agency for payment to the general fund of the state treasury."

SECTION 16.

Said chapter is further amended by revising Code Section 17-12-80, relating to determination of indigency, as follows:

"17-12-80.

(a) In order to retain funding as provided in Code Sections 15-21-74 and 15-21A-6, a governing authority shall verify that the applicant qualifies as an indigent person. The governing authority shall establish the methodology for verification and fund such process. The governing authority shall produce auditable information to the council agency to substantiate its verification process as requested by the council or its director.

(b) The council director shall establish rules and regulations 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.

(c) The governing authority shall advise the circuit public defender, if applicable, or the administrator of the indigent defense system for the jurisdiction of the name of each person who has applied for legal services and provide identifying information for those persons who are financially eligible for services within one business day of such person's application for services."

SECTION 17.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 18.

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