Commissioners Get Attorney Tutelage on Population vs. Caseload

HARRISON – During the March meeting of the Clare County Board of Commissioners, a motion was presented for contracting with the Michigan Department of Health and Human Services. That contract would enable reimbursement of attorney expenses incurred in the prosecution of DHHS cases, namely the county’s abundant child sexual assault, physical abuse and neglect cases. Immediately preceding at the same meeting, those case numbers had been enumerated in stark detail by Terrah Johnson, executive director of the Northern Michigan Alliance for Children’s Child Advocacy Center in Harrison. Johnson had informed commissioners that Clare County lags behind only Wayne County in the state for confirmed child abuse/neglect cases, as well as a confirmed rate of 38 victims out of every 1,000 children.

Following that presentation, Clare County Prosecuting Attorney Michelle Ambrozaitis had explained that while understaffing in her office had been ongoing, the DHHS contract would reimburse up to $80,000 in the remainder of the current fiscal year, and increase to $100,000 in coming years thereafter. That money, she said, not only would enable hiring an additional attorney who could work on those cases, but that the work done for the DHHS cases would dovetail with the criminal cases which so often accompany them. The gist was that the $65,000 hire-in cost for the attorney would be more than adequately covered by the DHHS reimbursement, particularly as the next fiscal year increase could cover the attendant employee fringe costs.

Some commissioners were hesitant to sign on, citing the opt-out clause as being a “no guarantee” component that could leave the county without the reimbursement and on the hook for a new employee. There was also reference to years past when the county had a less-than-desirable experience with DHHS [then under a different directorship] leaving its agreement when the county was facing budgetary hurdles. That gun-shy mindset resulted a split 4-4 vote which caused that motion to fail.

At the following April 5 BOC Committee of the Whole meeting, Ambrozaitis presented some materials aimed at educating the commissioners and the public about the way prosecutor slots are allocated. She prefaced her presentation by noting the caseload study conducted by the Prosecuting Attorneys Association she would be referencing had been provided to commissioners when it was first received, but that the new board members had not received it and she thought it “would be a wonderful time” to talk to them about the caseload study and how it came about.

Ambrozaitis said that when the Michigan Indigent Defense Council came into being the MIDC had hired ta RAND Corp. study done, because there had been a complaint that MIDC was overworked, wasn’t paying attention to their cases or properly managing them. She said that resulted in standards which the MIDC now has to follow.

“Part of that was the caseload study,” she said. “According to the RAND study, the participants that started worked means of 46 hours each week and some reported 50 or more hours work, and 10% reported 60 or more hours work. They took all of those numbers and looked nationally at what other states have done, and averaged that time out.”

She said what was determined was an assumption when figuring caseload standards that there were 1,856 hours in a year for the attorneys to spend on case preparation and representation of their client. That led to establishing a maximum number of cases one attorney could handle in a year.

“So, murder or manslaughter, 15 cases,” she said. “Criminal sexual conduct, 23 cases; other Class A felonies 37; high severity felonies 46; low severity felonies or two-year high court misdemeanors 74; one-year misdemeanors 232; 93 days 255; probation violations 530; other adult indigent clients 619.”

She went on to say attorneys can handle only approximately 400 misdemeanors per year.

“And a certain number of felonies per year maximum,” Ambrozaitis said. “And if you’re handling a combination of those felonies and misdemeanors, those numbers change.”

She said the Prosecuting Attorneys Association used that RAND study in order to establish a baseline, and also asked prosecutors in the 23 of 83 counties that participated [Clare being one] for their own office’s caseload numbers. Those she said were averaged with the RAND numbers [for hours worked] in order to arrive at the most conservative number available.

“They even reduced the hours needed for case preparation, less than what it came out to be, to make sure we were coming forward with the most conservative numbers for review,” Ambrozaitis said. “In 2018, when we participated in this case study, we had five attorneys, and as prosecutors we handle 100% of the cases that come through the office.”

She said in Clare County, 90% of the people who are charged with a crime receive and indigent defense counsel, and 10% retain their own counsel. Meaning, that while defense counsel work is shared out, the prosecution handles 100% of the work.

Ambrozaitis also noted that the study only took into account adult and juvenile averages, and didn’t include personal protection caseload, mental competency hearing caseload, forfeiture cases, specialty courts, the multi-disciplinary team used in child sexual assault/abuse, child support cases, abuse/neglect cases, other cases such as expungement, and appeals.

“None of those things that we do were factored into the resources required to do just the criminal portion of what our office does,” she said. She said the study took the 1,865 hours per attorney, and used a formula to determine if there was a surplus or a shortfall of attorneys.

“In all 23 counties they studied, there was a shortfall,” Ambrozaitis said. “So, nobody was staffed at 100%. We were staffed at five attorneys at the time of the study, and we were still short 2.7 attorneys per the caseload. Gladwin was short 3.8 and Isabella was short 7.9 – and I point those out because I know we’re constantly being compared to those neighboring counties.”

She further pointed out that population is not relevant to the review on how many attorneys are needed in that office, but rather it’s the caseload that serves as the determining factor. The prosecutor noted that there are larger populous counties with lower staffing, but that is because they have a lower caseload than Clare County.

Ambrozaitis directed commissioners to a graph in the report which showed the Clare County Prosecutor’s Office as being 60% staffed for attorneys. She said Isabella is at only 40%, and Gladwin staffed at only 30% due to their caseload shortfall.

“We are doing a little bit better than Gladwin or Isabella County,” she said. “But we are still short staffed.”

Also noted in the report was extra duties performed by the prosecutor’s offices, i.e., specialty courts such as Recovery Court which is the umbrella entity that includes Recovery Court and Veterans Court, and because they meet on the same day/location, Ambrozaitis said she had labeled them as one court. Gladwin had labeled them as two, however both counties dedicate the same amount of time [four hours per week] to Recovery Court and the specialty courts.

The prosecutor then spoke of comments from the BOC stating her office has more attorneys than her predecessor had.

“That was 14 years ago,” she said. “I know time flies by and it doesn’t feel like it’s been 14 years – but it has been 14 years. And in those 14 years, we have more patrol cameras that we have to watch; every time the state police does an investigation, there are four camera views out of their vehicle we have to watch. And we are held to higher ethical standards; we are required to ensure that we are seeking justice, that we’re making appropriate charging decisions. And in order to do that we need to review all of that video footage to ensure there isn’t any exculpatory evidence that is contained within that footage.”

Also new in those 14 years is body-worn camera footage which must be reviewed; new/better and more complex DNA technology; cell phone extraction and digital evidence which Ambrozaitis said can be voluminous. She specifically noted a child sexually abusive material case where her office had amassed a binder of more than 500 pages [front and back] of a groomer’s Kik Message and Chat App text messages between the offender and the victim which had to be reviewed.

“I just wanted to talk to you about the study, so you are aware why I am continuing to push for the vacant fifth attorney position to be filled again,” she said. “I’m not asking to be brought up to seven attorneys in the office – I understand that budget-wise that’s not feasible for Clare County. But it at least gets us closer to where we need to be in order to effectively prosecute cases on behalf of the people we serve.”

After the remaining agenda items were addressed, chairperson Jeff Haskell asked if anyone else had anything for the board, and Hayes Township resident Pat Adams came forward.

Adams introduced himself as the current president of the South Cranberry Lake Homeowners Association which covers Oak Beach and Oak Shore Subdivisions and District 7. He enumerated his school, military and professional work history, going on to note his budgetary experience in the military and his supervisory work in his private employment.

Adams then spoke of the prosecuting attorney’s motion request at the previous meeting for hiring an attorney to handle the DHHS casework, which had been based on the aforementioned DHHS cost-offsetting contract which had failed.

“I heard a few people mention ‘Well, in the past, this happened, they pulled the contract from us and we got stuck,’” he said. “And they were also concerned with having to pay unemployment if the DHHS pulls the contract and what are you going to do with the lawyer, are you going to keep them or let them go and have to pay unemployment, and they didn’t want to pay unemployment.”

Adams said in the businesses he had dealt with, and from the study he listened to at the previous meeting – which no one had disagreed with – he understood the county has between 700 and 800 cases being continually maintained. He also noted the study calling for seven lawyers, when four are employed.

“This would increase them by one lawyer, with no cost to us as a community,” he said. “I you guys had a real big struggle with budgets a year ago, then got everything on track and really good. I’ve got to commend everyone here that’s elected, because you’re taking away from your full-time jobs or your time, and putting forth to it. I know it’s your responsibility to make sure of fiscal responsibility for the county. Also, you’re responsible for the well-being of the people in our county.”

Adams then reminded of the previous meeting presentation describing the children being abused in the county.

“My personal feeling is that I think wrong decisions were made because of stuff that happened in the past,” he said. “While I was in the military, I went through a lot of different battalion commanders and brigade commanders, and every one ran things differently. They have a new representative at the DHHS – and we’ve got to give it a chance, that we as a community are taking care of our kids. And the only way we can take good care of them is if we have the legal representation that’s needed. We have an opportunity, as a community, to hire a lawyer and the state pays for it.”

He further noted that an employer paying unemployment insurance is a given, whether or not the person gets laid off. And, in his estimation, with all the attorney vacancies needing to be filled throughout the state, he couldn’t see an attorney being laid off for very long.

“I think a wrong decision was made on behalf of our community,” he said. “If we have somebody saying they’re going to pay for us for that person, I don’t see why we don’t try it.”

Following Adams’ comments to the board, attendee Mark DeYoung spoke of comments made at a BOC meeting [actually made at a Harrison City Council meeting] by a deputy indicating that a change in the Harrison contract would enable him to double his arrests. DeYoung said that in his opinion, that would increase the prosecutor’s office workload.

“And right now, if you go out in the county and talk to the people, you’ll see there’s a lot of people being arrested for the dumbest things,” he said. “So, if we could get a little more control on who’s being arrested, how they’re being arrested, we might have a little bit less workload for our attorneys.”

He also said that alleviating the workload would thus eliminate the need for the additional attorney, adding that there were other things that needed to be looked at and analyzed: that it is being rushed through without thought. He added that the sheriff’s department is down three officers, and when that number comes back, there will be even more work added for the prosecutor.

“I love you all, we’re all fellow citizens,” he said. “I don’t want to see her overworked, but at the same time, I don’t want to spend money we don’t need to.”

DeYoung closed his comments without making clear how avoiding apprehension of criminals would help the county’s child sexual/physical abuse or neglect problems – or which particular crimes he thought were “dumb.”