One could easily argue that former Humboldt County Public Defender David Marcus' tenure ended much as it began: with a mistake.
The Humboldt County Board of Supervisors voted unanimously Dec. 5 to accept Marcus' resignation after nine tumultuous months on the job, during which nearly every employee of his office signed letters questioning his competence and urging his ouster, a lawsuit sought to prove he didn't meet minimum state qualifications for the job and deputy public defenders fled their jobs. But it appears the board violated state open meeting laws by trying to roll approval of Marcus' severance agreement into the action item accepting his resignation without specifically listing the agreement or its $25,000 payout to Marcus on the agenda.
Terry Francke, who serves as general counsel for the nonprofit CalAware and helped author sections of the Ralph M. Brown Act, said the board's action seems a clear violation of the act, which is designed to guarantee the public's business is conducted in public. The severance agreement should have been on the agenda, discussed and voted on in open session, Francke said. Because it wasn't, the Journal will be sending a "cure and correct" letter to the county essentially asking for a do-over that would force the board to make its decision in the light of day with a historic record of the vote. (Repeated calls and emails to County Counsel Jeffrey Blanck to discuss this have gone unreturned.)
Why does it matter? Because Marcus' hire and subsequent tenure here were an abject disaster, a stain on the county and the board that will not soon be forgotten. It impacted lives — there's at least one man in state prison arguing that he will be there longer than promised thanks to poor legal advice from Marcus. There's also the fact that it kneecapped what was a very strong public defender's office. It will recover but it will likely take far longer than it took to unravel.
And it matters because we, the public, have a right to know who on this board decided Marcus, who had been an at-will employee, should leave Humboldt County with $25,000 in taxpayer severance funds — an amount that's more than half the county's median household income. There are also some other things in the agreement that we think the county should be aware of.
For instance, the agreement stipulates that neither side is admitting any liability or wrongdoing and both sides agree not to sue one another. Marcus promises not to "seek in the future any type of employment" with the county and the county agrees — "in consideration of employee's promises made herein" — to offer only a neutral reference if a prospective employer should call asking about Marcus, one that will include only his dates of employment, job title and salary. The agreement also includes a mutual "non-disparagement" clause under which the county, the board and Marcus agree not to make any "disparaging or defamatory" comments about one another or to "approach the media regarding this settlement agreement or matters regarding employee's employment and resignation."
There's also section 18(c), which notes that "employee is hereby advised that he should consult with an attorney prior to executing this agreement," that should draw a chuckle from some corners of the courthouse.
While there is, candidly, part of me that's angry that some of my tax dollars are going toward paying Marcus to go away, the severance is probably a defensible move by the board. As an at-will employee, Marcus could be fired at any time — and there appeared to be ample cause — but that doesn't mean he wouldn't have sued the county, a lawsuit that would necessitate staff time and resources to defend and, to some extent, prevent the public defender's office from turning the page and moving on. This was the board's mistake when it hired someone grossly unqualified and unfit for the position.
And because these types of mistakes do have very real consequences, I feel compelled to remind the board of a few things as it embarks on hiring the county's next public defender.
First, if you're going to put together an advisory panel to interview applicants, make sure they know what they're doing. You'll recall that last time the panel was stacked with the district attorney, the undersheriff and the chief probation officer — all of whom generally sit on the opposing side of the courtroom from a public defender — and not a single defense attorney. Just as a city wouldn't hire a police chief without taking the input of police officers, you shouldn't hire your next public defender without talking to someone who practices criminal defense.
Second, do some homework. In Marcus' case, 10 minutes worth of Googling would have told you that just about the only thing you could find about the guy online at the time of his hire was a scathing Lassen County Grand Jury report accusing him of only spending 30 to 40 percent of his days at work. That should have been a red flag. Along the same lines, vet an applicant's resume. In Marcus' case, you would have learned that the law firm he claimed to have been working 10 hours a week for — Cella, Lange and Cella — doesn't have a website or appear in any online news reports. Dig a little deeper and you would have found that it isn't a member of the Contra Costa Bar Association and, in fact, that the association's executive director had never even heard of the firm. You also might have found that Marcus listed his home address with the California State Bar, a strange move for someone purporting to be an employed attorney. And maybe even reach out to some former co-workers. (When we did this to inquire about Marcus, the response was overwhelming and quite negative.)
Finally, if after making a new hire you suddenly get a pair of blistering letters signed by virtually every member of the new hire's staff calling him or her incompetent and unqualified, please take them seriously. Whatever you do, don't go on a local radio show to say it's all a conspiracy from "one of these weekly newspapers" because "they have to sell their papers."
To be perfectly clear, board, you can't screw this up again. You aren't city councilmembers putting in hours where you can, working for a stipend. This is the full-time job you signed up for and you get paid well to do it, pulling in an annual salary that's roughly double the county's median household income. People are counting on you. The Humboldt County Public Defender's Office handles about 80 percent of the local criminal court calendar, and most Humboldt County residents qualify for its services. We are all counting on you not to screw this up again.
Thadeus Greenson is the news editor at the Journal. Reach him at 442-1400, extension 321, or email@example.com. Follow him on Twitter @thadeusgreenson.