Miller awarded public defender contract for Cheyenne County

For the first time in at least two decades, Cheyenne County will have a public defender after county commissioners unanimously approved awarding Sidney attorney Donald Miller a contract for the position during Monday's regular meeting.

Once contracted, Miller will serve as an independent contractor for a two-year term at a cost of $249,600.

Three other bids were received for the public defender position: Stacy Bach of Scottbluff with a two-year cost of $192,000, Steven Elmshaeuser of Sidney with a two-year cost of $336,000 and James Korth of Ogallala and Sidney with a two-year cost of $450,000.

One bid was received, from Audrey Elliott of Scottsbluff, for a proposed guardian ad litem position at a cost of $132,000 for a two-year term, but action on the position was tabled for a later date.

Recommendations for the positions were presented to the commissioners at prior meetings going back to December by the Public Defender Policy Board, consisting of attorneys Tom Oliver and Philip Kelly and layperson representative Larry Nelson, with no action being taken.

The board was present for the agenda item during Monday's meeting.

During the agenda item, Oliver spoke about a discussion at a previous meeting regarding also hiring conflict attorneys to fill in for the public defender or guardian ad litem when conflicts of interest arise preventing the attorney from fulfilling his or her duties.

"We did some research on that, checked with some good sources, and I think it's pretty clear we would need independent people acting as (that)," Oliver said.

Oliver said the board advertised and received bids for conflict attorneys for both positions.

Oliver said another issue discussed at previous meetings was whether the position of public defender, as well as a proposed guardian ad litem, would require the attorney to have a local office. He said it might be helpful to the commissioners if they knew what presently happens in the legal community.

"Whether it's civil, bankruptcy or criminal," Oliver said.

Kelly said it is routine practice in Western Nebraska, in both county and district courts, to conduct some hearings, such as those that do not require testimony, by phone or through an online video service such as Jabber.

"If you can do it by phone, you can save the travel time and cost," he said.

For trials or hearings requiring evidence, the attorneys are present, Kelly said.

"It is your decision about what policy you want to have in Cheyenne County, but I just want to make you aware of the use of technology in the court system that's pretty routine these days," he said.

Kelly said while the office issue was discussed in the board, it was not a consideration in their recommendation.

"We took into consideration that the attorney would have a duty to perform their representation of their clients ethically, and be here often enough, and appropriately enough, to accomplish that," he said.

Prior to making their decision, the commissioners had a letter they received from attorney Steve Mattoon offering public comment read aloud.

In the letter, Mattoon recommended the commissioners wait until the initial term of the appointment of the public defender and guardian ad litem has ended before considering contracting conflict attorneys.

"It would be extremely difficult at this point for any attorney to know and bid upon a conflict position as there is no determination of how many conflict court appointments and the amount paid thereof," Mattoon stated in his letter.

Mattoon also stated in his letter that, in his opinion, the public defender should have a full-time office in Cheyenne County because he feels it is "essential" that they are available on an ongoing basis for representation of clients and appearances in court.

"It is my opinion that the appointment of a public defender is not merely a cost-saving measure, but should also be to render capable and professional representation of those accused of crimes," he stated.

Mattoon then went on in his letter to recommend Miller for the position, stating that he was "the most knowledgable and most capable" of the applicants.

As for the guardian ad litem position, Mattoon stated his only concern was there would be numerous conflict situations in regards to the appointment of attorneys for children and parents.

"I have doubts the county will actually save money by hiring a full-time guardian ad litem," he stated.

Following the reading of Mattoon's letter, District 3 Commissioner Philip Sanders said as a county commissioner it has always been important, in his opinion, to do the will of the people who elected him.

"We've been at this for quite a while, and I've asked a lot of people, 'What do you want?'" Sanders said. "And the main thing they want to see is us appoint a public defender."

Sanders said an "overwhelming number," not just in his district but county wide, felt that it was important to have someone local in the position.

"And for a lot of different reasons," he said. "It would take too long to get in to them, but I wanted to make sure that everybody understood that the people I've talked to, that was their request."

District 2 Commissioner Darrell Johnson said between the two positions, he is concerned most of all with the public defender.

"That is where this started," Johnson said. "It started a long time ago, and personally, I'd like to see the commission cross this thing one bridge at a time starting with the public defender."

Johnson asked his fellow commissioners to settle on the public defender and take additional time before continuing with the guardian ad litem position.

Prior to their vote, Bach addressed the commissioners about her not being local to Cheyenne County. She said she does feel local, and took exception to Mattoon's letter.

"I do feel local," Bach said. "I feel local because I live in Western Nebraska."

Bach said in the year and nine months that she has been public defender in Kimball County, she has appeared by phone only three times.

"Those three occasions were juvenile cases where I represented a parent that was absent," she said. "That wasn't even going to appear in court."

Bach said she has appeared in court by Jabber, but some of them were when her clients were held in another county's jail.

"And I feel it's more important for me to be there with them, via Jabber, then sitting in the courtroom with the judge and the county attorney, in case they have questions for me," she said. "My upmost duty is to my clients. If I am awarded this contract, it's not a matter of where I hang my hat, it's how I do my job."

Oliver said while he appreciated Mattoon's input, and it is his choice to recommend a person for the position, he wanted to specify the board did not take a personal approach in putting together their recommendation.

"So that may be a little unfair to the other candidates, to have one person push at the expense of others," he said.

Kelly said letters of recommendation were not part of their bid process, just references.

Miller, also in attendance, said he was a partner with Mattoon for several years until 2011, but he did not solicit him or anybody else to write a letter of recommendation to the commissioners or the board.

"I was not aware that he had submitted the letter until after I had received a copy of it," he said.

The commissioners then voted unanimously to award a contract for the public defender position, but table the guardian ad litem and conflict attorneys until a later date. They then voted unanimously to award the public defender contract to Miller for a two-year term.

"This is a tough decision to make," Sanders said. "Everyone that applied is more than qualified. I just feel very strongly that I represent the people that voted for me to be in this position."

County Attorney Paul Schaub said the proposed contract would be presented to Miller and will be considered for approval at the next commissioners meeting.