The Connection

“You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.”

If you have ever been placed in police custody or interrogated, you’ve heard these words spoken by a police officer. It’s called the Miranda Warning and it guarantees that, when you’re in a tight spot with Arlington law enforcement and you need legal assistance but can’t afford to hire an attorney, Arlington’s Office of the Public Defender will be there to represent you in court. However, when the Public Defender squares off against the Commonwealth’s Attorney in the courtroom, there’s one substantial difference between the two: while the Chief Deputy Commonwealth’s can be paid up to $148,866, the Deputy Public Defender’s pay is set at $84,329.

Matthew Foley is Arlington’s Chief Public Defender and has been lobbying for Arlington to implement subsidies for the Public Defender’s Office since Virginia legislature authorized the subsidies in 2008. In that time, Arlington has not issued any subsidies to the Office of the Public Defender. In terms of budgeting, Foley and others in the Office of the Public Defender often draw the comparison to their legal counterpart, the Office of the Commonwealth’s Attorney.

“We have an adversarial system, you need to have well-trained citizens on both sides, you need to have a fair fight,” said Foley. Foley points out that a mid-level Assistant Commonwealth’s Attorney, with a salary range of $72,467 to $117,770, can make more than Foley, the Chief Public Defender, whose pay is set at $117,054. Deputy Public defenders in Arlington are paid $84,329.

While the Public Defender’s Office has a set pay rate for each position, the Commonwealth’s Attorney’s Office allows for a flexible salary range, each position with 19 built-in steps that cover the pay range.

“What you see in our salary is that we don’t have grades and don’t have steps,” said Foley. “You don’t move in salary range within that level. It’s a big problem. It’s very expensive to live here, and it’s difficult to hire and retain high-quality employees, which is very important. I’ve got good people here and I can’t hold onto them.”

Foley emphasized that he doesn’t want the County to stop subsidizing his legal counterparts, but said the funding inequality creates an unfair imbalance.

“It’s a good thing that the county supplements the Office of the Commonwealth’s Attorney,” said Foley. “But, if you don’t do the same for the public defenders, you have an unfair game going on and you have people whose liberties are at stake.”

AT A PUBLIC HEARING on Tuesday, March 24, employees and former employees of the Public Defender’s Office expressed their frustration with the pay inequality. Sierra Jenkins is a former Office manager for the Arlington County Public Defender’s Office. Jenkins said the pay, which the Virginia Indigent Defense Commission listed as $42,794, was not enough to cover both the living costs of groceries and rent as well as paying back her student loans. To avoid taking on additional debt, Jenkins said she began working a second job at a local retailer, but after a few months working 14-hour days she knew she needed a job that would pay a higher salary.

“It’s only right that this office be given the proper resources to be on a level playing field with other county agencies, such as the Office of the Commonwealth’s Attorney,” said Jenkins. “It would be great if the Public Defender’s Office could afford to keep outstanding employees and continue to serve the community that benefits the most.”

William Miller, a Public Defender in Arlington, said that he has seen people in his office leave because they could not afford to continue living in Arlington on the Public Defender salary.

“It’s expensive to live in Arlington, but we want our police, firemen, our prosecutors, we want those people who serve this county to live in this county as well,” said Miller. “I want people to know here that as a public defender I serve this county. I serve its clientele; I serve the residents of Arlington County. I serve the courts. As someone who has gone to law school in Arlington, who lives in Arlington, who sends my kids to Arlington [schools], sometimes I regard being a public defender as a luxury I can no longer afford, or whether living in Arlington is a place where I cannot pursue my calling.”

THE FY 2015 TOTAL BUDGET for the Arlington and Falls Church Office of the Commonwealth’s Attorney was $4 million, two thirds of which is paid by Arlington County with less than one third being paid by the state. The 2015 budget was a 3 percent increase over the 2014 budget citing personnel increases for health insurance costs, adjustments to retirement contributions, and a pay adjustment for staff reclassified into positions identified as “below comparative pay studies.” According to Diana Sun, Director of Communications for Arlington County, the proposed FY 2016 budget increases that funding to $4.3 million.

The Arlington Office of the Public Defender’s total budget is $1.6 million paid from the state. Within the statewide Public Defender pay scale, Arlington’s Office of the Public Defender does fall under what Foley calls a “NOVA bump.” The $42,794 Jenkins was earning as office manager was $5,035 more than what that position earns outside of Northern Virginia, but Foley says it still isn’t enough to compensate for the dramatically different cost of living in Arlington.

In neighboring Alexandria, where the Commonwealth’s Attorney’s Office receives subsidies from the city and prosecutes misdemeanors, like in Arlington, the City also supplements the funding to the Public Defender’s Office. Whenever the Commonwealth’s Attorney’s Office receives a merit based pay increase, the Public Defender’s Office does as well.

“I think public defenders should be paid a salary that is appropriate,” said Theophani Stamos, Commonwealth’s Attorney for Arlington County and the City of Falls Church. “I will say that prosecution does have the burden of proof and does have to put on the case. I’m not saying we do more work, but it’s a different burden. For the system to work appropriately, advocates on both sides need to be well trained and publicly supported.”

While adversarial in the courtroom, Foley said the Office of the Commonwealth’s Attorney has been very helpful in helping the Office of the Public Defender compile their information to make their case to the County Manager.

“Public defenders are important because due process in the criminal justice system matters,” said Foley. “It takes an efficient and balanced justice system to protect the rights of persons involved in this. Strong prosecution and public defenders are equally responsible for assuring that we have fair trials and equal justice for all in Arlington County.”

Stamos explained that Virginia law only requires Commonwealth’s Attorney’s Offices to prosecute felonies, but in Arlington, her office also prosecutes misdemeanors like driving under the influence and trespassing. According to Stamos, and confirmed by the Commonwealth’s Attorney’s Services Council, in some other counties in Virginia where the Commonwealth’s Attorney does not prosecute misdemeanors, evidence in these cases are presented by police officers but there is no prosecutor.

“You don’t want a police officer prosecuting a drunken driving offense while a defense attorney is on the other side of the court,” said Stamos.

But Stamos also added that in each of these cases where a prosecutor would be involved, jail time is included as a possible sentence if convicted, which means the defendant in these cases are also entitled to a public defender.

According to Sun, in terms of the budget, the Office of the Commonwealth’s Attorney’s and the Office of the Public Defender are handled very differently.

“The Commonwealth’s Attorney is a constitutional office, all of which are treated the same,” said Sun. “These offices are outlined in the state constitution. We have those constitutional officers that have staff, those are constitutional employees. They are on our payroll, they are part of our budget, and they are part of our retirement system and health system.”

While Arlington does receive funding from the state to help cover the costs of those positions, she said it’s less than 50 percent of the total cost.

“The Public Defender’s Office is completely different,” said Sun. “It’s a state office, those are state employees. They are asking for a subsidy from Arlington. That is a budget request, and the board has been working for the past few months on the budget requests, but this is a very tight fiscal year.”