County files exceptions to state labor ruling

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ALEX ROSE - MEDIANEWS GROUP
Christopher Welsh, director of the Delaware County Public Defender’s Office.

Delaware County has filed exceptions to a proposed Pennsylvania Labor Relations Board order that would nix a new Public Defender’s Office policy restricting outside work for its attorneys and setting higher salaries.

The filing argues that Hearing Examiner Jack E. Marino reached a finding of fact that “most” public defenders hold a second job to make ends meet with little evidence, and asserts that finding the new policy was not a managerial prerogative is inconsistent with prior decisions on similar cases. The county also took exception to two recommendations regarding salary changes for five new hires made last year.

Merino heard arguments on the new policy and pay structure earlier this year and determined the county and public defender’s office violated the Public Employee Relations Act by unilaterally increasing starting salaries for new hires and implementing a new outside work policy outside of collective bargaining with a public defender’s new union formed last year.

According to the findings of fact in the order, the PLRB certified a new bargaining unit of 44 staff employees in the public defender’s office in August 2020 as part of the United Auto Workers International Union. Negotiations with the county are ongoing and there is no first contract.

Public defenders previously earned an average of $37,000 per year on a salaried, non-hourly basis and have been allowed to supplement this income with outside work for at least 20 years, the order says.
The county hired Christopher Welsh as the new Public Defender in July 2020. Shortly thereafter, Welsh declared his intentions to prohibit secondary employment practices for public defenders, indicating staff would have to extricate themselves from private practice by the end of 2021, according to the order.

To offset this lost income, Welsh said he wanted to raise starting salaries to $53,000, which is more competitive with surrounding districts. Legacy attorneys would also see their salaries increased to the same level.

Lauren Farrell, lead organizer for the public defender attorneys, argued in a written proposal in October that the new policy does not create equality because some employees may see larger increases than others. She instead proposed to arrive at a wage agreement that increases salaries for veteran attorneys above the new hire rate and to separate the outside practice issue from negotiations, but that proposal remains unanswered, the order says.

Welsh said in testimony before the examiner that he believes public defenders should be 100% focused on their indigent clients and that he cannot properly check for conflicts or correctly manage workloads if he does not know what other work his employees might be taking on, the order says.

But Welsh was unable to cite any conflicts that had arisen in the past or an example of a public defender not meeting their obligations due to outside work and has not had to reduce the caseload of any public defender, the order says.

The policy appears to have been adopted and implemented as of Oct. 31, 2020. A February 2021 email from Chief Personnel Human Resources Officer James Kane to Farrell specifically prohibited public defenders from representing “any private client in any court for any fee whatsoever,” according to the order. A March 2021 email from Kane to Farrell also stated that prohibiting outside employment is a “managerial prerogative” and is therefore non-negotiable.

Welsh hired five new attorneys in November at the new starting salary of $53,000, but later reduced that figure to $33,000 for two because they failed the Bar Exam, the order says. The prohibition on outside work is in effect for the new hires, according to the order, and their higher starting salary was not bargained for with the union.

Merino found that the significant interest public defender attorneys have in relying on their training and experience to earn supplemental income far outweighs the “speculative, unsubstantiated assertion by management” that eliminating the ability for those attorneys to engage in private practice would improve services, prevent conflicts of interest, ensure greater focus on indigent clients or improve staff management and caseload determinations.

The order also found there is no question that wages and hours are statutorily mandated subjects of bargaining and that reducing salaries for two of the five new hires without bargaining was a PERA violation.
But Delaware County attorney Melissa A. Lovett argued in a brief supporting the exceptions that Merino only heard from one office attorney about his own supplemental practice and the UAW failed to present any other testimony from other attorneys to demonstrate the extent to which they might be impacted by the new policy.
That single attorney also testified that he might have 100 active cases outside the public defender’s office, Lovett noted. It would be nigh impossible for Welsh to ensure even those cases were free of conflicts, let alone potentially hundreds more taken on by other office attorneys, with any semblance of efficiency or effectiveness, the brief says.

Lovett notes that since the May hearing on these issues, the county has also learned of at least one attorney who did allegedly commit ethical and constitutional violations, and that their secondary employment did, in fact, negatively impact representation of office clients. The county is asking the PLRB to reopen the record for additional evidence and testimony on that point.

The brief additionally points out that the policy does not bar public defenders from taking on any other work at all, only legal representation of clients and other professions that requiring a Pennsylvania state professional license.

Typically, these cases are decided on a “balancing test” to determine whether the impact a policy might have on wages, hours, terms and conditions of employment is outweighed by the commonwealth’s ability to preserve integrity in public service.

The county argues that UAW and Merino relied on case law in which a sheriff’s office impermissibly barred deputies from working in other law enforcement positions on weekends and holidays. Here, however, the attorneys would have to be working outside jobs during the same hours as their public defender positions to make court appearances and the like, the county said.

The case is more analogous to a 2020 Pennsylvania Supreme Court ruling that upheld requirements for enhanced background checks of higher education faculty, recognizing public safety of minors outweighed the policy’s impacts on wages, the county said.

The public interest is the paramount concern in the collective bargaining/managerial prerogative balancing act, the brief says, and the county’s legal, constitutional duty to provide quality and effective representation to indigent residents cannot be ignored.

“There is no doubt that the role of the public defender is essential to the business of the court and their availability at a moment’s notice is a substantial function of the job,” Lovett argued. “…The potential ramifications of not knowing the whereabouts of employees or if an attorney is helping a private client when emergently needed in court is problematic.”

Merino additionally placed great emphasis on the “modest income” of public defenders, but failed to take into consideration an alleged offer to bump everyone’s salaries to $53,000 while negotiations for a contract were ongoing, Lovett said.

As for the two new hires who had their salaries cut, the county contends that there is no historical evidence that people who did not pass the bar should start at $37,000 rather than $33,000, and that reducing pay for the three other attorneys who did pass may result in their departures, leaving the office short-staffed and services to indigent clients interrupted.

An attorney representing the UAW could not be reached for comment Thursday, but county Solicitor William Martin said the union has until Sept. 29 to file a response.

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