Supervisor Sean Elsbernd
Photos by Luke Thomas
By Luke Thomas
February 4, 2009
Following Public Defender Jeff Adachi’s request for $50,000 to fund the replacement of two former paralegals, Supervisor Sean Elsbernd yesterday responded with a request for a budget analysis of his office, Fog City Journal has learned.
In a letter sent yesterday to City Controller Ben Rosenfield, Elsbernd includes a laundry list of questions to Rosenfield that Elsbernd says are “designed as an informational gathering tool.”
“I considered doing some sort of deappropriation or other more draconian measure last week,” Elsbernd stated in response to FCJ inquiry, “but, in the end, did not believe that was really in the best interests of fostering a robust budget discussion in June as the Board considers the FY 2009-2010 budget.”
While the City faces an unprecedented fiscal crisis, Adachi contends that without the funding – twice denied by Mayor Gavin Newsom and the Budget and Finance Committee on which Elsbernd sits – lawyers within his office will be forced to undertake the work normally carried out by paralegals. Adachi maintains this will further erode his ability to provide the constitutionally mandated defense of indigent clients, particularly those clients who need representation in violent felony cases.
“Without paralegal support, they cannot continue to effectively represent clients in these cases,” Adachi said.
Public Defender Jeff Adachi
Adachi believes Elsbernd’s motivation to undertake a budget analysis has more to do with “petty retaliation” than understanding the details of his budget, calling Elsbernd’s move “politically motivated.”
“He’s obviously doing this to attack the programs in my office,” Adachi said. “This is harassment and it’s politically motivated.”
Responding to Adachi’s assertion, Elsbernd said: “The motivation for the request of information is a result of the Public Defender’s letter last week stating he is no longer able to fulfill his constitutional duties of representing indigent clients in violent felony cases. I want to make sure he has the resources to fulfill his duties.”
“Hopefully, the answers to the questions I have posed will provide the Mayor and the Board sufficient information to appropriate the funds he needs to do just that in next year’s budget,” Elsbernd added.
More Info
Letter from Supervisor Sean Elsbernd to Controller Ben Rosenfield requesting a budget analysis of the Office of Public Defender:
Ben Rosenfield, City Controller
Controller’s Office
City Hall, Room 316
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
Re: Inquiry into the Office of the Public Defender Budget
Controller Rosenfield:
The Office of the Public Defender provides constitutionally mandated representation to adult indigent clients and juvenile clients in San Francisco. This request concerns the constitutionally mandated functions of the Office, the non-criminal social services provided by the Public Defender, and the use of private counsel in defense of indigent and juvenile clients.
In order to gain a better understanding of the Office of the Public Defender, the services provided, the efficacy of these services, and the costs associated with them, please prepare an analysis of the Public Defender’s budget to address the following questions:
What percentage of the Public Defender’s budget is used in defense of indigent and juvenile clients versus social work and other non-criminal defense functions? Please provide an itemized list of non-criminal defense costs.
How does the Office of the Public Defender determine and verify who is indigent? What criteria are used to determine indigence? What are the procedures for ensuring that individuals meet these criteria?
What procedures does the Public Defender use to refer a case to Indigent Defense? Do these cases represent true conflict of interest? How frequently does the Public Defender refer cases to Indigent Defense based on staffing availability instead of a true conflict of interest?
What is the average cost per case of private counsel appointed by the “conflicts counsel” versus counsel provided by the Public Defender? What is the average length of incarceration for clients represented by the “conflicts counsel” versus the Public Defender?
What is the average per case cost of defending indigent clients in peer counties (Alameda, Santa Clara, San Mateo, and Los Angeles)?
What is caseload comparison between misdemeanor and felony filings handled by the Office of the Public Defender over a ten-year period? What were the dispositions of these cases?
What percentage of misdemeanor cases handled by the Public Defender are taken to jury trials? How does this compare to the defense of indigent clients facing misdemeanor charges in the peer counties (Alameda, Santa Clara, San Mateo, and Los Angeles)? What were the dispositions of these cases in San Francisco and peer counties?
How does the Public Defender define “caseload”? How many cases are active, requiring staff time? What is a reasonable standard?
How do the Superior Court/Public Defender ensure that all fees are collected? Could the Superior Court/Public Defender recover more costs through better collection of fees?
What performance measures are used to evaluate the efficacy of social work and non criminal defense functions performed by the Office of the Public Defender?
Have social services and reentry work provided by the Office of the Public Defender been shown to reduce recidivism?
Thank you for your consideration of this request.
SEAN ELSBERND
Luke Thomas
Luke Thomas is a former software developer and computer consultant who proudly hails from London, England. In 2001, Thomas took a yearlong sabbatical to travel and develop a photographic portfolio. Upon his return to the US, Thomas studied photojournalism to pursue a career in journalism. In 2004, Thomas worked for several neighborhood newspapers in San Francisco before accepting a partnership agreement with the SanFranciscoSentinel.com, a news website formerly covering local, state and national politics. In September 2006, Thomas launched FogCityJournal.com. The BBC, CNN, ABC, NBC, CBS, Fox News, New York Times, Der Spiegel, San Francisco Chronicle, San Francisco Magazine, 7x7, San Francisco Examiner, San Francisco Bay Guardian and the San Francisco Weekly, among other publications and news outlets, have published his work. Thomas is a member of the Freelance Unit of the Pacific Media Workers Guild, TNG-CWA Local 39521 and is a member of the Society of Professional Journalists.
Follow Me:
The Hunger Site
February 9, 2009 at 3:31 pm
There is no questioning the hundreds of thousands of dollars the city ponies up to fight Prop 8 – can’t the ACLU or Gay rights advocates do this? There is no questioning the city paying hundreds of thousands of dollars to private attorneys to advocate in third party civil litigations in which the City is not a party (Tenderloin Housing Legal Defense Fund). I think the “special interest groups” represented (gays, tenants) have too many votes to be held to the same scrutiny as the Public Defenders Office, even though there is a constitutional requirement to fund it. Sorry, Jeff – YOU LOSE!
February 9, 2009 at 7:13 am
OK. I was being sarcastic. But of all the fat at City Hall – especially the bloater mayoral staff he starts in on the public defenders office? Thanks for the info Luke. Oh, and as a legal worker for 35 years this factoid I found particularly on point:
“Without the paralegal support requested by the Public Defender, felony attorneys will be forced to perform paralegal duties at the rate of $85 an hour instead of the $31 an hour paralegal rate. As a comparison, the District Attorney’s office has a total of 130 attorneys and 131 support staff for a total of 261 staff members.”
February 8, 2009 at 10:53 am
“This is not personal, this is partisan, a component of the SPUR development model where the City is viewed for development potential alone, gentrified and clearcut of all but the absolutely essential low income workers…”
But our so-called progressive supervisors have been at the head of the pro-development, gentrification push in recent years. Supervisor Daly thinks the luxury condos in highrises at Rincon Hill are a great victory for a progressive housing approach in the city. And then there’s the Market/Octavia Plan—more market-rate housing in 40-story highrises at Market and Van Ness—and the sell-out to the predatory UC on lower Haight Street, both projects that couldn’t happen without prog support on the Board of Supervisors.
February 7, 2009 at 11:31 am
Let’s see, there are how many progressive citywide elected officers? Where is the same level of scrutiny for the District Attorney, City Attorney, Treasurer, Assessor and other players on Team Newsom?
This is not personal, this is partisan, a component of the SPUR development model where the City is viewed for development potential alone, gentrified and clearcut of all but the absolutely essential low income workers, nice ones who don’t need public defender services, who know their place and can never, ever elect a supervisor again.
Elsbernd is carrying forth on the legacy of Barbara Kaufman and has been quite successful at getting progressives to forfeit those legal political tools which give us a comparative advantage and pushing disempowering “reforms” such as set-aside reform, one time revenue restrictions and the like. We end up giving this stuff away for nothing.
Elsbernd’s legislative assistant had to plead the fifth amendment as she was called to testify at the politically instigated prosecution of Elsbernd’s former boss Tony Hall at Ethics, the shady appointment of which led to Elsbernd’s elevation. So the Catholic Altarboy veil that Sean presents has been well pierced. Sean is a pleasant guy interpersonally, but don’t believe for a moment that he’s not a smart, shrewd and effective political operative working in concert with powerful vested interests and a Mayor, all who would see San Francisco cleansed of most folks reading this and replaced with a more politically docile population.
Newsom is an aimless boob whose political corpse is being picked dry on by the local political consultancy class, a neoliberal Ronald Reagan handled by others of sorts, but Elsbernd is smart enough to be dangerous and is effective beyond the apparent weakness of his hand.
-marc
February 7, 2009 at 1:01 am
I do not see Supervisor Elsbernd’s attack on Jeff Adachi as being a personal attack. Adachi and his staff are doing a tremendous job and I believe Elsbernd knows that. Rather I thing Elsbernd thinks the city could save a little money by spending less on the Public Defender’s office and he would not mind sacrificing the reputation and quality of the work done by the office. After all the office represent indigent and some people who Elsbernd probably feels to be the dregs of society. Some of them have even committed crimes. I suspect that Elsbernd feels that these people are not entitled to the same hard hitting defense that members of the middle class are entitled to. As Elsbernd, as a lawyer, should know all clients are entitled to a zealous defense. Jeff Adachi and his staff are to be congratulated on the great job they do with an insufficient amount of funds.
February 6, 2009 at 10:26 pm
“This guy regularly calls people ‘bike nazis’ and has cost the City a couple of million over the last 3 years while cyclists are regularly clocked by Rob’s SUV crowd. I wouldn’t let this guy write on my bathroom wall.”
Oh Harold, where did we go wrong in our relationship? Probably when I first encountered you way back in 2004, when you pretended to live in District 5 and pretended to be a serious candidate for supervisor, though you had nothing to say about specific issues. Just another jive-turkey self-promoter among many similar candidates. You refer to our successful litigation against the city’s Bicycle Plan. We of course tried to warn the city about how they were breaking the law, and—what do you know?–it turned out that we were right. The city—urged on by your bike nut friends—would have saved the taxpayers a lot of money if they had simply followed the law and done an EIR on the 500-page Bicycle Plan.
Not clear why I’m supposed to be a hypocrite, since I’ve been consistent on that and many other issues over the years.
February 6, 2009 at 11:12 am
The Office of Public Defender released the following press release:
SF Public Defender Calls Supervisor’s Audit a Waste of Public Resources
San Francisco, CA – San Francisco Public Defender Jeff Adachi on Thursday promised cooperation with Supervisor Sean Elsbernd’s call for an audit of the public defender’s office, but accused Elsbernd of engaging in petty retaliatory politics that are wasting valuable resources.
“I think that this unnecessary audit will result in an incredible waste of staff hours, for both the Controller’s office and my office. While I intend to fully cooperate with the audit, clearly this was done in retaliation,” Adachi said.
Adachi, whose office is contending with a dramatic increase in representation of defendants facing serious criminal charges, previously renewed a request to fill two paralegal positions that were vacated last year.
Adachi submitted justifications showing that paralegals were necessary to perform work that would otherwise have to be handled by lawyers at a higher cost. The paralegal positions were approved in his 2008-2009 fiscal year budget, but were subsequently disallowed by the Board of Supervisors’ Budget and Finance Committee and the Mayor’s Office.
According to Adachi, the cost of hiring two paralegals is $50,000. He told the supervisors’ committee that if he didn’t receive the paralegal support, he would be forced to stop taking new cases, likely costing the county between $500,000-$1,000,000 to hire private lawyers for indigent criminal defendants over the next year.
After a hearing, in which Elsbernd criticized Adachi, the supervisor sent a letter to Controller Ben Rosenfield to request an audit of the Public Defender’s Office covering 10 years.
The inquiry also requires comparisons to public defender offices in other California counties, including Alameda, Santa Clara, San Mateo and Los Angeles, and reveals what Adachi considers an “utter lack of regard for how the criminal justice system functions.”
“Supervisor Elsbernd wants to examine the dispositions of every misdemeanor and felony case public defenders have handled over the past decade, some 200,000 cases. And comparisons to counties such as Los Angeles, which has 39 public defender offices and serves a population of nearly 10 million, are patently absurd. It’s even more ridiculous that he would ask the City to spend tens of thousands of dollars on it,” Adachi said.
In the meantime, Adachi has already instructed his staff to begin compiling the requested information. “I’ve always had a good working relationship with the Controller and am happy to cooperate with him,” he said.
However, the Public Defender is concerned that the audit may require the use of resources that should be focused on providing legal representation to poor people.
“Supervisor Elsbernd unfairly accuses me of not being able to manage my budget. In fact, I am part of a taskforce of criminal justice agencies working with the Controller’s office to save San Francisco millions of dollars by making the court system more efficient,” Adachi said. “I would much rather be working on how to save the county millions instead of wasting my staff’s time responding to the audit.”
PUBLIC DEFENDER’S OFFICE FACT SHEET
– Constitutionally mandated
The Public Defender’s office is the only city department providing a service mandated by the U.S. and California Constitutions. Under the Sixth Amendment, an accused is entitled to the right to counsel in misdemeanor and felony cases.
– Comparatively small budget
The budget for the Public Defender’s office is $23.5 million, less than the $24 million the city spends annually for police overtime.
– Efficient staffing
The Public Defender’s office has 95 attorneys, known as Deputy Public Defenders, and 73 support staff for a total of 168 staff members. The ratio of paralegals to attorneys is 1:8. Without the paralegal support requested by the Public Defender, felony attorneys will be forced to perform paralegal duties at the rate of $85 an hour instead of the $31 an hour paralegal rate. As a comparison, the District Attorney’s office has a total of 130 attorneys and 131 support staff for a total of 261 staff members.
– No overtime
Deputy Public Defenders and staff are not paid overtime, unlike police, sheriff and probation officers, all of who are paid time and a half for any overtime hours. According to a 2003 Controller study, Deputy Public Defenders work an average of 50-70 hours per week.
– Heavy caseload
The Public Defender’s office provides legal representation to over 24,000 people each year. The court appoints the Public Defender in all criminal cases where there is no conflict of interest between the Public Defender and the client. In cases where a conflict of interest exists, such as where the Public Defender represents a co-accused, the case is assigned to a private attorney. The District Attorney decides which cases to file. The Public Defender does not control the number of cases assigned to the office.
– Increasing demand
This year, the Public Defender’s office experienced an unprecedented increase in serious cases. Attorneys who work on felony cases handle an average of two murder cases and 60-70 felony cases, including serious felony cases, at any given time.
– Turning away cases a last resort
When the Public Defender has too many cases, the Public Defender is empowered to decline cases. This is a common practice in public defender offices and is sanctioned by the American Bar Association. If requested paralegal positions are not approved, the Public Defender’s office will have to decline representation in 5-7 current cases, and in future select homicide and major cases that require paralegal support. The Public Defender has estimated that it will cost the city $500,000-$1,000,000 for private attorneys to handle all of the cases that the Public Defender will have to reject if the $50,000 request to fund two paralegals is denied.
– Answerable to voters
The Public Defender is an elected position. Its occupant runs the Public Defender’s office, which was established by the City Charter in 1921.
The mission of the Public Defender’s office is to provide vigorous, effective, competent and ethical legal representation to persons who are accused of crime and cannot afford to hire an attorney. Established in 1921, the San Francisco Public Defender has a long, proud history of providing top-notch representation to its clients, and championing programs that help people turn their lives around.
February 6, 2009 at 10:02 am
Anderson’s a complete hypocrite,
This guy regularly calls people “bike nazis” and has cost the City a couple of million over the last 3 years while cyclists are regularly clocked by Rob’s SUV crowd. I wouldn’t let this guy write on my bathroom wall.
h.
February 6, 2009 at 9:17 am
This is pretty despicable stuff. Questioning Elsbernd’s mental health, calling him “evil,” speculating about a “deeper conspiracy,” and—the ultimate insult!—calling him a Republican, is way over the top. And all over a mere $50,000, which is chump change in SF, even with a $500 million budget deficit. Why not take a close look at Adachi’s budget?
February 6, 2009 at 8:09 am
What we’re seeing here from the GOP in congress, Sacramento and our own Mitch McConnell in room 200 is the final coup d’gras of Reaganism, just as it lies discredited in the dustbin of isms.
Sean Elsbernd is an attorney and should be familiar with the constitutional obligation of a jurisdiction to provide counsel to those charged with crimes. The question to Elsbernd is, as a forward thinking matter of policy, is it more fiscally prudent to pay for in-house attorneys or to contract that out to a private entity?
I’m sure that Elsbernd would like nothing more than to privatize public defender services out to attorneys who could not care less about their clients, are not accountable, and just take the money and run.
In Elsbernd’s mind, just like Gavin “Mitch McConnell” Newsom and the GOP at the state and federal levels, government only exists to take the tax dollars from working folks and funnel them to wealthy interests, like the attorneys to whom Elsbernd would prefer Public Defender obligations be privatized to.
And don’t count Sean out. He’s the smartest member of the Board of Supervisors, and when he tells progressive supervisors ‘shit,’ as often as not, they squat and ask “what color?”
-marc
February 5, 2009 at 6:13 pm
Campers,
This goes back for at least a decade to the time when Adachi was Jeff Brown’s right hand man (and numbers cruncher extraordinaire) and regularly waxed Harvey Rose in front of Budget & Finance. I certainly agree that you have to look at programs that don’t return value but the PD’s office certainly isn’t one of them. There’s a deeper conspiracy at work here.
Notice that David Chiu, sitting as prez when Adachi talked at Public Comment gave virtually every other person extra time but was ready instantly with a reason that Adachi couldn’t be afforded that respect? Chiu and Elsbernd clearly worked out how they were gonna cut Jeff off and cleared it with Deputy C.A., Cheryl Adams.
Take your pick on motivations as to why Chiu and Elsbernd and Rose and Adams would conspire to insult the Public Defender right in front of me on my computer.
h.
February 5, 2009 at 11:56 am
I’m confused as to why this is such a story, and why people are complaining about a supervisor asking for a budget review before handing over $50,000.
We are in the middle of a financial crisis, people. Shouldn’t we want our supervisors to ask for back up and proof of need before increasing budgets?
If its only Republicans that care about where our money is going, then we’re in a lot of trouble. Money that goes to a department that may not need it (and how will we know until an analysis like the one Elsbernd is asking for is completed) is money that CAN’T go somewhere else, to a program that might be in a more dire situation than the Public Defender’s office.
Elsbernd shouldn’t be reprimanded for doing his job, which is to make INFORMED decisions (which obviously require the GATHERING OF INFORMATION) about where our money is going.
February 5, 2009 at 2:56 am
When will people like Elsbernd, Chu, MAP, and Newsom announce that their true party is Republican. If you look at their pattern of political behavior you can see that it is as destructive as the US and State GOP. They parrot them so much that I’m starting to loose faith in the Democratic Party for not cleaning house.
February 4, 2009 at 7:13 pm
For an attorney, Elsbernd is showing that he is not too bright! But evil-yes! I SUPPORT social services for the PD’s office. I WANT to invest in solutions and prevention, so he needs to retreat from attacking the PD’s office.
I never liked him but did not realize what a low-life he is. I hope he takes a long, long paternity leave. The city will thank him for going AWOL!
February 4, 2009 at 3:15 pm
Elsbernd has been acting very strange recently. I have no problem with his usual conservative position on issues, etc. He is a conservative and I would expect him to espouse the usual conservative positions on fiscal responsibility, morality, etc. positioning himself with the center right board members and the mayor. However, he is beginning to get a little weird. I hope someone is monitoring him as to his mental health and general well-being. Something might be going on that isn’t good if you catch my drift.