Millions of dollars at stake. Fight brewing over Merced defense contract

A multimillion-dollar fight looms over Merced County’s criminal defense services as the deadline approaches quickly for Merced County to approve a new contract for attorneys working on dozens of open homicide cases.

Tom Pfeiff, the administrator for the Merced Defense Associates, filed a letter last week to the county protesting how the county scored two respondents to a request for proposals for indigent defense services.

While the Public Defender’s Office represents suspects who cannot afford to hire private attorneys, cases are referred to MDA when the county public defenders have a potential conflict of interest, such as representing a co-defendant in a case.

County staff requested bids for the service in August after Supervisor Jerry O’Banion recommended it. Two law firms responded – MDA and Ciummo & Associates.

The county has drafted a five-year contract with Ciummo for about $9.5 million, a price about $1.5 million lower than MDA’s proposal. It includes seven staff attorneys and two investigators in addition to six contract attorneys and investigators to work with them as needed.

In his protest letter, Pfeiff criticized the county for providing inaccurate information in the question-and-answer period of the process. Ciummo’s firm drafted its proposal based on the incorrect information, and the evaluation committee that scored the proposals also based its scores on wrong numbers, Pfeiff said.

The county incorrectly said that in the fiscal year for 2014-15, MDA handled three jury trials. Pfeiff said MDA attorneys actually handled 18. County staff also were unable to say how many of the 47 homicide cases for the same fiscal year were special circumstances. Pfeiff said 20 were special circumstances.

Currently, Pfeiff’s office is handling more than 30 homicides, and 17 of them are with special circumstances, he told the Sun-Star.

Mark Cowart, the county’s director of administrative services, said the county’s responses depend on when the questions are submitted. The question period is open for about three weeks to a month.

“There may not be enough time to gather the information,” he said. “Or certain levels of detail are not available. It’s important to try to get the information for the answers as accurately as we can.”

Cowart said it’s the bidder’s responsibility to provide a proposal based on the information the county provides.

“It’s incumbent on the bidder to respond with the information that’s provided,” he said. “The bidder has the ability to provide additional information based upon their own research.”

Michael Fitzgerald, the CEO and part owner of Ciummo, said his firm would be able to handle 18 jury trials in 12 months. “That’s not an issue,” he said.

Pfeiff said he believes whoever provided the answers “misinterpreted or misunderstood” the numbers in reports.

“I think there’s confusion from noncriminal experts that may have led to the answers on the questionnaire,” he in an interview with the Sun-Star.

The protest also said MDA was not given “local vendor” consideration.

Supervisor Daron McDaniel said before the bids were made public, he was “barraged by calls from local people telling me how to vote.”

McDaniel said, as a new board member, he saw many contracts come before the board that were automatically renewed year after year. With three new supervisors elected to the board in November, more long-term contracts may be opened up, he said.

McDaniel described the $1.5 million difference between the proposals as “alarming.”

“Competition is good,” McDaniel said. “I’m always in favor of the local vendor. But at the same time, I don’t want to create a marketplace where the local vendor can charge whatever price they want. At that point, I’m not being a good steward of taxpayer money. I have to be accountable.”

McDaniel says he hasn’t made a decision on how he will vote on the contract, and he’s still studying the proposals more in depth.

Fitzgerald said, if awarded the contract, he hopes to hire local attorneys for a competitive salary. He also said, if possible, the same attorneys currently working under Pfeiff’s contract would be retained.

Ciummo has contracted with Madera County for about 30 years and Fresno County for more than 25 years, Fitzgerald said.

MDA’s contract includes eight criminal attorneys and one civil attorney. The criminal attorneys are Susan Albertoni, Bill Davis, Dominic Falasco, George Herman, Eloise Kelsey, Andre Margain, Tom Pfeiff and Leanna Rhodes.

Cindy Morse deals with civil matters and no criminal matters, state judicial officials have said. She is married to District Attorney Larry Morse II.

This story was originally published May 8, 2017 at 5:56 PM with the headline "Millions of dollars at stake. Fight brewing over Merced defense contract."