By Patrick J. Fugina

Assistant public defender negotiators and the State Board of Public Defense reached a tentative agreement on a contract during a day-long collective-bargaining session at the offices of Teamsters Union Local 320 in southeast Minneapolis Friday, February 11, 2000.

When the session ended at 3:45 p.m., negotiators agreed to meet during the next two weeks to discuss nine unresolved issues. Once those issues are resolved, the proposed contract will be presented to the Board of Public Defense for approval.

Following approval by the Board, copies of the Labor Agreement and ballots will be sent to the state’s 280 assistant public defenders for a vote on whether to ratify the contract. A simple majority of assistant public defenders who return ballots will determine whether the contract is ratified.

Harold Yates, Teamsters Union Local 320 Negotiator, told management negotiators that the union wants to send out the Labor Agreement and ballots no later than March 6.

If that deadline is met, assistant public defenders would have until March 30 to send or deliver their ballots to Union Local 320. Public Defender Negotiating Committee members would tabulate the ballots March 31 at Union Local 320 headquarters. Any assistant public defender could attend the ballot-counting.

Dick Scherman, Chief Administrator for the Board, told negotiators the Board would have to vote on the proposed agreement at its February 24 meeting to meet the union deadline. He said he would try to meet the deadline, but could not promise it.

Friday’s negotiating session was cordial and low-key following nearly eight months of collective-bargaining that began in July 1999.

The public defenders were represented by Brian Aldes, Brenda Corrigan and Yates from Union Local 320; and public defenders John Fossum and Kevin Riha from the 3^rd District, Sue Ginsburg from the 5^th District, Nancy Mattson from the 6^th District; Chris Anderson, Kelly Madden, Kari Seime and Patrick Fugina from the 10^th District; and Charlann Winking from the State Public Defenders Office.

The Board was represented by Scherman and Elizabeth Shevi, Principal Planner.

The issue of primary importance and interest to assistant public defenders is, of course, salaries.

The salary schedule in the tentative agreement has a salary range of $43,000 for a full-time public defender with no experience to $83,082 for a full-timer with 22 years or more of experience. The entry level salary is a significant increase over the current starting salary of about $32,000 for a full-time public defender with no experience.

The range for part-time public defenders in the tentative agreement is from $32,250 to $62,312 for ¾-timers and from $21,500 to $41,541 for ½-timers.

The salary schedule is significantly modified from the Board’s prior proposal, which contained 19 steps for each of three attorney levels, totalling as many as 57 steps through which a public defender would have to progress to reach the top of the scale, with no guarantee of an annual step increase.

In contrast, the salary schedule in the tentative agreement contains 22 steps. Public defenders would be an Attorney I for the first three steps, an Attorney II for steps 4 through 8, and an Attorney III for steps 9 through 22.

Each step would represent one year of service. Public defenders receiving satisfactory annual evaluations would be guaranteed to advance one step on the salary schedule.

The annual salary increase for each step would be 2½ percent, except increases at steps 3, 8, 13 and 18 would be 5½ percent. Annual increases under the salary schedule would average more than 3 percent.

Under the tentative agreement, public defenders would be placed on the salary schedule based on their years of public defender experience. This is defined as years of continuous service of at least half-time status as a public defender, including work for the state, county, law firms funded through the Board of Public Defense, or for a state outside Minnesota.

The issue of how to define prior experience for salary purposes was controversial. The public defender negotiators initially proposed to the Board that the criteria be years of attorney licensure. The Board refused to consider this. The public defenders later proposed that public defenders receive one-half credit for up to seven years of law-related service as an attorney, including for law clerking, legal aid, private practice, prosecuting and private defense. The Board again refused to consider this, insisting on the traditional definition of years of public defense experience.

Public defender negotiators reconsidered the issue during a caucus meeting apart from the Board negotiators at Friday’s session. The public defenders discussed whether they should push a new proposal with a narrower definition that attorneys receive credit for either prior prosecuting or private criminal defense experience.

It was pointed out this might be unfair to those with prior clerking or private practice experience who could argue their litigation-related experience was just as valuable. Harold Yates suggested it would be nearly impossible to resolve issues of what constituted acceptable prior practice experience. Moreover, expanding the definition of prior experience would lower the salary schedule and affect the entire membership as the Board had made clear it would refuse to devote any more dollars to the salary schedule. Finally, the Board had given no indication it would agree to any expanded definition of prior experience.

In the end, the public defender Negotiating Committee voted to accept the Board’s proposed definition of prior years of service.

For this and other reasons, there is unlikely to be unanimous support for the tentative agreement among the public defender membership.

The proposed salary schedule significantly raises the salary range for public defenders, guarantees annual raises, and substantially achieves equality of pay for public defenders based on their public defender experience. But because in the past there has been a wide disparity of pay ranges for public defenders and widespread salary inequities, the proposed salary schedule gives significant increases to some and very little increases to others in order to achieve pay equity.

Every public defender will receive a salary increase of some amount under the proposal. In general, the larger increases will go those public defenders newer to the system with little experience, those in the mid-range of experience who had not been given proper credit for prior service, and those in all salary ranges who had typically not received annual merit increases.

The largest initial increases under the proposed salary schedule would be in the range of $15,000 to $21,000 for some public defenders in the mid-range of experience who had been short-changed on years of prior service. Public defenders who have reached the top of the salary schedule are likely to receive more nominal increases. Although in earlier negotiations the Board had proposed a $10,000 cap on an initial salary increase for public defenders, public defender negotiators had insisted this be dropped and the Board agreed.

Under the tentative agreement, all public defenders would receive a 2½ percent cost of living increase retroactive to July 1, 1999. Then the new salary schedule would take effect July 1, 2000, with all public defenders placed on the schedule based on their years of service accrued to that date.

But the next step -- implementation of the first step increases following July 1, 2000 -- is bound to spark controversy. Under the Board’s proposal in the tentative agreement, public defenders would not receive their first step increase following July 1, 2000 until the anniversary of their hiring date beginning after July 1, 2001. This means there would be no step increases for a full year from July 1, 2000 to July 1, 2001; in other words public defenders would not receive their first step increase until at least 12 months after implementation of the new salary schedule. Public defenders whose anniversary date is in June would not receive a step increase for 23 months following their placement on the new salary schedule July 1, 2000.

Moreover, the Board’s intention is apparently to increase public defenders only one step following that 12 to 23 month wait. This means, in effect, that all public defenders would be one step behind on the salary schedule according to their actual years of service.

Scherman was questioned about the equity of this by John Fossum and Chris Anderson at last Friday’s session, and he insisted the Board was not willing to move up step increases to Fiscal Year 2001 due to budget constraints.

Among the nine unresolved issues that will be discussed during the next two weeks, one of significance to part-time public defenders will be criteria for eligibility for overhead compensation.

The tentative agreement doubles overhead compensation for ¾-timers from $1,500 to $3,000 annually and for ½-timers from $1,000 to $2,000 annually. However, the negotiators were not able to agree on eligibility criteria.

Although union negotiators had reported the Board had agreed to eliminate the criteria, Scherman insisted that was not the case. Scherman said at last Friday’s session that John Stuart, State Public Defender, wants criteria that will insure part-timers will be able to meet clients in an office outside of their homes and to return phone messages from clients.

The parties agreed to appoint conference committees of part-time public defenders and chief public defenders to meet and discuss eligibility criteria.

Other issues that will be discussed during the next two weeks are:

Grievance procedure for unsatisfactory performance evaluations. If a public defender is to be denied a step increase due to an unsatisfactory performance evaluation from a supervisor, the tentative agreement allows him/her to file a grievance. Scherman and Aldes will discuss the length of time (probably 60 or 90 days) prior to the public defender’s anniversary date that he/she must be notified and given time to resolve the unsatisfactory report in order to receive the step increase. If the public defender is still deemed to be unsatisfactory, he/she could file a grievance.

Stability pay. The Board’s proposal would pay a $900 lump sum annually to full-time public defenders who have reached the stop salary limit in their job’s salary range and who are not eligible for step increases. This would be phased out and not available to new employees hired after July 1, 1999. Public defenders have argued stability pay should also be paid to part-timers.

Medical leave statement. The Board wants employees using sick leave to be required to furnish a statement from their doctor confirming the nature and expected duration of the illness or disability. Public defenders have balked at requiring employees to disclose the nature of their ailment. There is also a dispute about whether management would have the right to an examination by a medical practitioner of its choice.

Investigatory leave. The union has insisted that public defenders suspended during a disciplinary investigation be placed on paid rather than unpaid leave. This provision is fairly standard among union contracts and it appears the Board will agree to it.

Minimum hours for part-timers. The Board has proposed the current minimum hourly requirements for part-timers to qualify for insurance benefits continue at 1,365 per year for ¾-timers and 910 for ½-timers. John Fossum proposed the standard be decreased to 1,320 for ¾-timers and 880 for ½-timers, calculating this would allow part-timers the equivalent of four weeks vacation, two weeks sick leave, and 11 holidays, comparable to what full-timers receive.