Staff attorneys in the Monroe County Public Defender’s office have announced plans to form a union.
The union drive comes amid ongoing questions over who will lead the office. Some 60 frontline attorneys in the approximately 73-lawyer agency are seeking to form a Service Employees International Union-affiliated bargaining unit.
Describing their agency as “beset with turmoil surrounding the selection of the new public defender,” the agency’s staff lawyers hoping to unionize say in a statement that they are organizing “to prevent their office from being used as a pawn in local political conflicts.”
In the more than 200 days since the agency’s last head, Tim Donaher, retired, the question of who might replace him has been fraught, leaving the agency so far without a permanent head for roughly a third of the eventual appointee’s two-year term.
Since its start, critics have assailed the selection process as untransparent and too much under the control of County Legislature President Sabrina LaMar, a Democrat who secured her office by choosing to caucus with Republicans.
LaMar referred questions to Nathan Van Loon, chair of the committee responsible for selecting Donaher’s replacement.
Van Loon insists that LaMar has not unduly influenced the selection process.
“The only instruction she gave me was to find the best candidate,” he says.
Nevertheless, politics have considerably muddied the waters surrounding the choice of a new leader for the perennially understaffed agency, concedes Monroe County assistant public defender Megan Gokey. But for herself and colleagues hoping to unionize, “politics are not the main issue. We’ve been talking about a union since last year.”
Caseloads are their top concern, Gokey says. Politics spurred the office’s frontline lawyers to act on unionization but they aren’t the main reason staff is seeking to organize.
While the number of clients each lawyer represents at any given time fluctuates, it is always too high, Gokey says. That the agency is currently understaffed by some 20 lawyers partly explains the overload, but understaffing is not the end of the story.
Public defenders represent accused criminals who cannot afford to hire a lawyer. How many such clients might need the office’s services at any given time is not in the agency’s control. Still, says Gokey, caseloads could be cut without leaving clients unserved.
Judges can assure that all indigent clients are represented by assigning cases that fall above whatever limit the public defender’s office might agree to cover to private attorneys, she says. Sending cases to such assigned counsel is already a longstanding practice. No new measure would be needed to implement it.
The short-staffing problem is not an easy one to solve and cannot entirely be laid at the feet of the office’s management or the county administration, Gokey concedes. There are funds in the county budget to hire more lawyers and the office does try to recruit more lawyers. But public interest law is not a top choice for many lawyers nor is it a career promoted by law schools, which like to advertise that their graduates are earning top dollars at prestigious firms.
For public defenders, says Gokey, supersized workloads mean “you never see your family and don’t have time for anything but work.” Such conditions lead to burnout and high turnover for the office, exacerbating an endemic staff shortage. A union could bargain for caseload limits and other working conditions that she and other would-be union members believe would improve the office’s effectiveness.
At the same time, says Gokey, the political turmoil that has engulfed the county office for the better part of year has had a destabilizing effect. So might the choice of a new leader, especially one not familiar with the office.
A new political appointee could, for example, decide to clean house and put their own people in key positions. An outside candidate without institutional knowledge of the office and its practices could reorganize it ways that would disadvantage clients or make working conditions for lawyers worse, Gokey says. A union would make such moves harder if not impossible to make.
A controversial process
The controversy over choosing a new chief to head the county agency stretches back to January when LaMar exercised her prerogative as Legislature president to organize a committee to choose a new county public defender.
Initially, the committee consisted of five members, two appointed by the Democratic and Republican County Legislature caucuses, respectively, and three named by LaMar. As the process unfolded, LaMar twice extended the time frame in which the committee would make a choice and expanded the committee’s size. With each expansion, LaMar appointees accounted for a majority of committee members.
“The process was that there was no process,” says Joan Kohout.
A retired Monroe County Family Court judge and a Democrat, Kohout was among the committee’s initially appointed members. Committee members rejected applicants for no apparent reason and the body conducted scant vetting of applicants, she says.
At one point, says Kohout by way of example, Van Loon, a LaMar appointee, cut off an applicant attempting to present himself to the committee as a candidate, saying that he didn’t need to hear what the applicant had to say because he had already made up his mind.
The committee at several points came under critics’ fire for lack of transparency. In April, it caught heat for failing to advance Jill Paperno, a well-thought-of, longtime assistant public defender. Paperno subsequently resigned from the agency.
Selection committee chair Van Loon, a family practice lawyer who heads his own firm and onetime counsel to Monroe County Democrats, disagrees with Kohout’s characterization.
On Paperno’s elimination, he says, “I can’t speak to anyone else, but there was a decision (by the Public Defender’s Office’s management) to eliminate coverage of the (Rochester) City Court.”
That move, Van Loon believes, cut out a valuable training ground for assistant public defenders, depriving the office of its much needed “farm team.” As part of the management team that made that call, Paperno would have been, in his view, a less than ideal choice.
“That’s just my opinion,” he cautions. “I can’t say what was in anybody else’s mind.”
Past appointments to the Public Defender’s post were made without benefit of any selection committee, Van Loon notes. LaMar created the committee to broaden the process. To vet applicants, committee members including Kohout quizzed candidates and looked at credentials.
Expansions and time extensions were made to try and widen the field in hopes of attracting what was initially a thin field applicants. Van Loon says he rejected the candidate in Kohout’s example because the person said he didn’t really want the job.
At present, the choice appears to have been whittled down to two candidates, Buffalo criminal defense lawyer Robert Fogg and Julie Cianca, a supervisor in the county public defender’s office. LaMar says she favors Fogg over Cianca. But it is not clear that Fogg has enough Legislators’ votes to win the office.
The Democratic County Legislature caucus and LaMar have been at odds since she and several other Democratic county lawmakers formed a breakaway caucus that voted with the GOP to thwart Democratic County Executive Adam Bello’s initiatives.
Other members of the breakaway group, which called itself the Black and Asian Caucus, lost their seats in the most recent election, leaving LaMar as the breakaway Democratic group’s only surviving member.
LaMar’s subsequent decision to caucus with Republicans won her the Legislature presidency and denied her fellow Democrats control of the body. Those developments have not endeared her to the Legislature’s Democratic caucus.
Meanwhile, parties familiar with the Legislature say, several Republican lawmakers have said they prefer Cianca, throwing Fogg’s chances into doubt.
A vote could come as soon as the Legislature’s next full session in September.
In the end, Van Loon says, for him, the choice came down to whether a candidate with institutional knowledge or one with a fresh perspective would best serve clients and the office. He favors the latter.
Fogg, the external candidate, says Van Loon, is more highly educated and was the only candidate to submit a writing sample. Fogg is also the only candidate all seven members of the committee, including Kohout, backed under a ranked voting system in which four members, including Van Loon, voted for Cianca.
In backing Fogg, Van Loon asserts, LaMar simply is going with the committee’s top choice.
On the fears Gokey expresses over loss of institutional memory, Van Loon says. “I respect their right to form a union but sometimes people just fear change.”
While trying not focus on the political maelstrom, Gokey says she has kept an eye on it.
“I haven’t ignored the politics. I’ve written to legislators; I’ve talked to legislators; I’ve talked to Sabrina LaMar,” she says. LaMar has told her that she will support a union, Gokey adds.
Several other Democrats not known to be in LaMar’s camp have issued statements of support for the union. They include state Sens. Samra Brouk, Harry Bronson and Jeremy Cooney; Rochester Councilmember Stanley Martin; Monroe County Legislator Yversha Roman and Monroe County Democratic chair Zach King.
Whatever the outcome of the political jockeying, establishment of a public defenders union seems likely. Final say on the union is up to Bello, who in a statement voiced support for the nascent labor organization.
“I support the right of the public defender staff attorneys to unionize and advocate for their working conditions and for their clients. My administration has an outstanding relationship with our county employee unions and welcome the new union once it’s established,” the county executive’s statement reads in part.