Northland public defenders push back on return-to-office mandate

Sep. 3—With 34 years of service under her belt, Donna Clark figured she was on a path to comfortably retire from the Northeastern Minnesota public defender's office in another seven years.

Starting as a legal assistant in 1987 and receiving a promotion to office manager in 1997, Clark was responsible for accounting, payroll, budgets, human resources and a variety of other behind-the-scenes tasks in the four-county 6th Judicial District.

Clark said she loved the job and wanted to finish her career in the office — that is, until a strict return-to-office policy was enacted by the state Board of Public Defense this summer.

"I just thought my health is more important than my job," Clark said. "So I felt that I was forced to resign."

Clark and several current employees of the public defender's office described to the News Tribune a sense of frustration and concern as the state weathers another wave of COVID-19, fueled by the highly contagious delta variant, which has prompted many other workplaces to continue offering flexible accommodations or postpone office reopening plans.

The employees said they were ordered back into the office full time starting in early August, with very few exceptions being granted, even as most court operations continue to be virtual. They argued that the policy is prohibiting them from doing the same work that they've successfully performed from home for nearly 18 months and creating additional delays in the already severely backlogged courts.

"My clients already have very little faith in an inequitable system," said Duluth public defender Veronica Surges, who recently had to postpone numerous Zoom hearings to stay home with her ailing dog. "When their court-appointed attorney suddenly doesn't answer the phone or show up for court, it only bolsters that perception."

But Dan Lew, chief public defender for the district that includes St. Louis, Carlton, Cook and Lake counties, defended the policy that has been enacted on a statewide basis.

"Minnesota public defenders take pride in our client-centered representation, which is oriented in the communities we are privileged to serve," he said. "During the pandemic, we never closed. The courts have returned to full operation, there is a backlog of several thousand cases statewide and the jails are again filling up.

"We serve the clients best when we work as a team. This includes lawyers and support staff. We operate as a team. As lawyers, we learn together, we bring team defense together, and this happens because we are brainstorming in our offices. Clients expect and deserve that we stand with them at the courthouse, during trial and during contested hearings. Our responsibility is to our clients. Working apart is not the same and not within the nature of client-centered defense."

High COVID-19 rates fuel health concerns

Clark said she hasn't been able to get a COVID-19 vaccine due to severe allergies and a compromised immune system. She had also been bothered by cleaning chemicals used in the office.

Throughout the pandemic, Clark said she would go into the office a time or two during the week, outside normal business, in order to minimize contact with others while completing any necessary on-site work. She'd also provide training for new staff members over the phone or in a virtual meeting.

Clark said she was ordered into the office for a meeting in mid-June and told that her job duties required her to transition back on-site full time — starting at three days a week, then four in August and five in September.

She said she requested a 10-week extension to Sept. 1, hoping to complete some scheduled medical tests and doctor's appointments to learn more about her condition, but she was denied any accommodations, despite submitting a doctor's note and filling out Americans with Disabilities Act paperwork.

"I'm very hurt," Clark said. "I thought I was an asset. I was working with them on developing an electronic system. I was traveling in different areas of the state and training people. I would do the orientation for new employees. I would speak at our agency conference. I was a decent employee. I wasn't calling in sick. I was on time, working an excessive amount of hours and getting the work done."

Lew said the office is "considering requests for accommodations consistent with ADA." He declined to get into specifics of Clark's case, stating: "We cannot comment on an individual's request for a reasonable accommodation, but we would dispute the characterization that you present."

Other workers also have cited health concerns among themselves and family members, particularly with more breakthrough cases being seen among vaccinated people. And schools are returning in person, fueling the potential for large outbreaks.

As of last week, all 87 counties in Minnesota were deemed to have "high" or "substantial" rates of COVID-19 transmission, as defined by the Centers for Disease Control and Prevention.

Natasha VanLieshout was diagnosed with cancer just two months after joining the Duluth public defender's office in 2018, continuing to represent clients as she underwent chemotherapy. While she has since overcome that battle and was able to get vaccinated, the attorney said she views the current situation as a "pretty severe humanitarian and human rights issue."

"We go into the courthouse to serve people every single day, and our own health and life are not being taken care of," VanLieshout said. "We basically have to choose to quarantine from our families. My mom has terminal cancer and is in chemo; I can't go see her if I'm in jail every single day."

Office following 'vigorous' safety protocols

Vaccinations have been strongly encouraged, but not required. While Gov. Tim Walz in August ordered state workers to provide proof of vaccination or submit to weekly testing, the Board of Public Defense is a semi-autonomous agency, technically classified within the judicial branch, and not included under the governor's mandates.

Lew said employees and visitors are asked to screen for symptoms daily and there is mandatory masking in common areas, along with social distancing measures. He added that there are plastic barriers in meeting spaces and that management has "worked with our landlords for vigorous cleaning of the office."

"We have four separate air-handling systems on each of our office levels, the ability to open windows for fresh air flow and HEPA air filtering in key locations throughout all our shared corridors," the chief said.

Lew and fellow leaders in the public defense system have long advocated to keep court proceedings in person, even as other jurisdictions long ago transitioned arraignments and other hearings to video. And while the pandemic has forced a discussion about the future of technology and courtrooms, he has expressed a desire to see the system eventually return to the traditional methods.

He argued that an office presence is crucial to the agency's mission. Throughout the pandemic, public defenders have hosted meetings with clients and set up remote hearing stations for those lacking the technological means to appear from home.

Lew said the office has distributed more than 300 Narcan kits and several hundred masks and bottles of hand sanitizer, thanks to a grant received last fall through the Coronavirus Aid Relief and Economic Security Act. And more than 300 warrants have been cleared through community-engagement events since spring 2020.

"It's about our clients and community. How do we serve our clients the best? In person," Lew said. "We visited, in person, clients terrified days before trial, those in mental health crisis, those withdrawing from opioids."

Courts, clients see pandemic delays

Staff members told the News Tribune that they are committed to performing the work and ensuring that indigent clients receive fair representation in court. They handle the bulk of the caseload, with some 90% of criminal defendants locally unable to afford a private attorney.

But the staffers questioned why their employer has taken such a hardline approach, particularly as their jobs continue to be predominately online. Currently, only trials, sentencings, contested hearings with testimony, and a few other proceedings are routinely taking place in courthouses, with judges continuing to cite COVID-19 mitigation measures in keeping other hearings on Zoom.

After her dog got sick, Surges said she had clients end up with arrest warrants because, while out of the office, she was prohibited from doing any work and could not provide defendants with the information they needed to log into their virtual hearings. Other times, she has had to request continuances because she was unable to communicate with a client or prosecutor.

"My clients are the ones who have really suffered," she said. "I've had to fall on my sword so many times in the past couple weeks and explain to judges that it was all my fault. They don't want to hear that. It's incredibly frustrating."

Lew acknowledged that continuances will sometimes be necessary, saying that "balancing safety and the rigor of client-centered defense is of the utmost importance."

"During these times, we continue to urge our colleagues to take time away from work to care for loved ones while also prioritizing self-care," he said. "All of that cannot occur if our colleagues continue to work virtually."

Sarah Prentice, a Bemidji-based public defender, said she's experiencing the same challenges in Northwestern Minnesota's9th Judicial District, which includes Aitkin, Itasca and Koochiching counties.

Workers said they believe it comes down to a lack of trust from agency leaders.

"For 18 months we were trusted to be professional and to know when we had to be in the office to get our job done and know when we could do it remotely," Prentice said. "And we're in a position where we're trusted to advise people about very, very important decisions in their lives. And then, suddenly, we have all of that discretion taken away from us."

Change sought by union, legislators

The policy applies only to full-time employees — attorneys, investigators, paralegals, dispositional advisors and other support staff — affecting a little more than two dozen people who work from the Duluth and Hibbing offices in the 6th District. The agency contracts with many other area attorneys on a part-time basis, but they work independently.

Non-managements staffers are represented by Teamsters Local 320. Hayley Albright, a Duluth-based investigator serving as a temporary union representative, said a Sept. 15 meeting has been scheduled with local and state management to discuss their requests, and members are attempting to negotiate a telework policy as part of their next contract.

Albright said she was denied a request to work from home. She had asthma as a child and she's concerned about her 8-month-old daughter because "every time she gets sick it hits here a little harder than other kids."

"For all of us, it was pretty disheartening, because we do a job every single day where we invest our mental health, our emotional well-being to make sure that other people in the community are taken care of," Albright said. "That's why we do what we do — because we want to help everybody else — and so it's hard when it feels like your employer isn't taking care of you and your health."

Albright said that, as of last week, one employee had finally been approved to work from home four days a week, but most remain in the office.

Some staffers have also taken to lobbying the Board of Public Defense, particularly Vice Chair Molly Jannetta, of Duluth. The governing body consists of seven members: four attorneys appointed by the Supreme Court and three public members selected by the governor.

But Albright said they have not heard back from the board, and Jannetta last week referred the News Tribune to Lew and other on-staff management for comment on the return-to-office requirement.

State Sen. Jen McEwen, DFL-Duluth, previously worked in the office and said she has been in talks with another former public defender, Rep. Cedrick Frazier, DFL-New Hope, in hopes of advocating for the staff. But she acknowledged it may be difficult task, as the public defense system is designed to be kept at an arm's length from politics.

"It seems quite wrong-headed for a number of reasons," McEwen said of the policy. "For them to have their concerns sort of brushed aside and told to report to work at an office, it's really disrespectful to them."

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