AURORA | For 25 years, Aurora’s Public Defender Commission has operated independently of the city, with a public defender commission appointed by Aurora City Council members. That commission is in charge of hiring, firing and overseeing the work of the city’s chief public defender. 

But Aurora City Council members narrowly voted Monday 5-to-4  on first reading to place the city’s public defender office under the Aurora City Manager. The move — if approved on second reading at a future city council meeting— means the city manager will be in charge of hiring and firing the chief public defender. Some council members say that would allow the city manager and attorney to exert inappropriate and unethical degree of control over the city’s public defender office and violate a constitutional right to independent council.

“I could use a lot of public improvements in Ward IV instead of spending hundreds of thousands of dollars in legal fees on this colossal mistake we’re about to make,” said Councilman Charlie Richardson, Aurora’s former city attorney, before the vote.  He and council members Barb Cleland, Marsha Berzins and Sally Mounier opposed the measure. Councilwoman Renie Peterson was absent.

“During the 28 years I served as city attorney, public defenders were a major irritant. That’s their job. They’re not supposed to be popular with the prosecutor or anybody else associated with the city,” Richardson said before the meeting.

Critics say the Aurora measure was prompted by a law passed by the state legislature earlier this year that prohibits municipal courts from jailing poor defendants who can’t pay fines. Then-presiding Aurora Municipal Court Judge Richard Weinberg testified against that state bill earlier this year, while at the same state House committee meeting, an Aurora public defender testified in favor of the bill.  That event irked some Aurora City Council members, who noted the defender was testifying not as an individual but as an employee of the city, and stating a position contrary to City Council’s public position on the law.

Aurora At-large Councilman Bob LeGare said he became concerned about the commission when he saw they held an executive session closed to public record for hiring a new public defender commissioner. He said no other city commission is afforded that privilege under the city’s charter. 

“That raised a red flag to me. No regular advisory board or commission is allowed to go into executive  session,” LeGare said during the meeting. “Everything is not rosy in the public defender commission from what I learned. Something needed to change, and that’s why this is in front of us today.”

Aurora City Attorney Mike Hyman said placing Aurora’s public defender office under the city manager will increase its accountability to the city and ensure the commission follows the city charter.

“It is in the City’s best interest and, as City Attorney, my ethical obligation to see that justice is done in our municipal court,” Hyman said in a statement. “Those individuals who need the legal services provided by our Public Defender’s Office are entitled to the same high quality of representation as the City Attorney’s Office provides to the City and its citizens.  The last thing that I want to see is the decisions made by our municipal court be called into question because a criminal defendant has been provided inadequate and ineffective legal representation.”

The measure drew several critics to the  meeting Monday, including David Beller, a member of Denver’s Public Defender Commission.

“The office of the municipal public defender represents the most downtrodden of our communities. Most times our clients are mentally ill, many times they are homeless,” Beller said. He said public defenders are commanded by the U.S. Constitution to zealously represent all indigent individuals who might not otherwise have a say in a matter where they could receive jail time.

“The interest of the city manager is anything other than the zealous representation of the individual client. It does create huge conflict of interest,” Beller said.

In Denver, the Denver County presiding judge appoints a five-person public defender commission, and that commission is in charge of hiring and firing the chief public defender.

Aurora’s measure has caught the attention of the American Civil Liberties Union, whose staff say it  does not conform to state or national public defender standards that dictate indigent defense requires public defenders be entirely free of political influence.

“The public defense is accountable to one thing and one thing only. That’s the constitution. Your public defender’s office is a model. Let’s keep it that way,” said Denise Maes, public policy director of the Colorado ACLU, at the meeting.

The ACLU says the conflict of interest comes from the fact that Aurora’s city manager also oversees Aurora’s police department, whose officers often serve as prosecutors in cases against indigent defendants represented by the court-appointed lawyers.

In August, Democratic state lawmakers Daniel Kagan and Joe Salazar — who drafted the bill preventing cities from creating virtual debtor prisons by jailing people who don’t pay fines — wrote city Aurora council members, warning that their plan to reorganize the public defender office would politicize the public defender’s role.

“The City should immediately change course and end its retaliatory efforts to punish the public defender’s office for appropriately advocating for the rights of impoverished criminal defendants without regard to the political priorities of the City,” the lawmakers wrote.

Beverly Edwards, who volunteered with Aurora’s public defender commission for 22 years and left this year, said she has not seen any strife on the commission. She said she left recently not because of any internal trouble but because her law office is no longer located in Aurora, making the commitment burdensome.

“I don’t think it’s a good idea to make it part of the city manager’s office. It needs to stay independent,” she said of the commission. “It’s like the same attorney representing both sides in a lawsuit.”

Ernie Lewis, executive director of the National Association for Public Defense, said such realigning of the public defender’s office violates a fundamental principle of the American Bar Association that says public defenders should have the oversight of a nonpartisan board.

“You want an independent public defense function so the city can run the police department and the public defender can play and independent role: challenging arrests, search and seizure, and challenging the government,” Lewis said.

Lewis’ views were supported by Colorado State Public Defender Doug Wilson, who opposes Aurora placing its public defender office under the city manager.

Members of the Aurora Public Defender Commission argue the commission already follows the city  charter because Aurora City Council passed a specific ordinance allowing it to hire and supervise the public defender.

Aurora At-large Councilwoman Barb Cleland, who served on council when the public defender commission was created, said she has respected its role in Aurora courts, which have much broader scope in cases heard than do most other Colorado municipal courts. In the 1980s, Aurora created legislation allowing it to hear domestic violence cases in city court because lawmakers were critical of how little attention the cases gleaned in county courts.

Members of the Aurora Public Defender Commission also dismiss the claim that the office is ineffective. They point to city data showing the Aurora City Attorney’s office has achieved a conviction on all charges in only about 12 percent of jury trials against the Public Defender’s Office in 2016 thus far.

Jose Martinez, who also testified in opposition to the measure at the meeting, said beforehand that because Aurora public defenders serve as at-will employees, they could be fired for performing the unpopular role of watchdog.

“There are times when a public defender asks for personnel records of a police officer if they believe he or she is engaging in an abuse of power. If we’re going after a certain police officer and the city manager believes that’s not a very good idea to do that, then that puts a chilling effect on our representation of our client,” Martinez said.

Bob Neu, a former lawyer and citizen member of Aurora’s public defender commission asked city staff and council members at the meeting why they had never directly reached out the commission if they were concerned about its effectiveness and professionalism.

Neu, who has served on the Aurora public defender commission for 15 years said he has never met Aurora’s city manager or its current city attorney.

“According to the city attorney, he’s having problems with our personnel,”  Neu said. “City attorney: please call me. I will come over anytime to help resolve the problem.”

Aurora’s public defender commission includes seven volunteers, four who are practicing attorneys and three who are Aurora residents not practicing law.

Aurora’s public defender commission members would continue to be selected by Aurora City Council under the measure and would continue to advise the city manager.

Next year, Aurora has budgeted for seven full-time attorneys to work in the city’s public defender office. The money for those positions comes out of the city’s general fund.