HomeMy WebLinkAboutRes-2018-212 Interlocal Pre-trial DiversionBOARD OF COUNTY COMMISSIONERS
COUNTY OF KITTITAS
STATE OF WASHINGTON
RESOLUTION NO. 2018-d ) d\
'
A RESOLUTION AUTHORIZING EXECUTION OF AN INTERLOCAL AGREEMENT
BETWEEN THE KITTITAS COUNTY PROSECUTING ATTORNEY AND THE CITY OF
ELLENSBURG, WASHINGTON FOR PRE-TRIAL DIVERSION
WHEREAS, RCW 39.34, the lnterlocal Cooperation Act, provides the capability for
public agencies to cooperate by providing services and facilities for mutual advantage;
and
WHEREAS, the Kittitas County Prosecutor's Office has developed and
implemented an internal pre-trial misdemeanor diversion program; and
WHEREAS, The City of Ellensburg is desirous of making use of that program as a
community benefit for a rate of compensation and other terms and conditions mutually
agreed upon by the parties; and
WHEREAS, the Prosecuting Attorney and the Ellensburg City Counsel have
properly entered into the lnterlocal Agreement attached hereto; and
NOW, THEREFORE, BE IT HEREBY RESOLVED, that the Board of County
Commissioners of Kittitas County, Washington ratifies the action of the Prosecuting
Attorney and execution of this lnterlocal Agreement that is attached hereto, and
incorporated herein by this reference, and which shall be forthwith filed with the Kittitas
County Auditor pursuant to RCW 39.34.040.
ADOPTED this I 8 hi day of Oe.t,. ·,11Jxr 2018.
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\~i~~~0i~ . J APPROVED AS TO FORM/DRAFTED BY :
~' l l d.-v k1:)'.1 .Jc Douglas R. Mitchell, Deputy Prosecuting Attorney
......EJ Clerk of the Board-Julie Kjorsvik
• Deputy Clerk of the Board-Mandy Buchholz
RESOLUTION
INTERLOCAL AGREEMENT BETWEEN
KITTITAS COUNTY AND THE CITY OF ELLENSBURG
FOR MISDEMEANOR DIVERSION SERVICES
This INTERLOCAL AGREEMENT ("Agreement") is entered into on this Jg-fhday of
ve ClA'11 ,b( {L , 2018, by and between Kittitas County, a municipal corporation of the State of
Washington, (hereinafter the "County"), and the City of Ellensburg, a municipal corporation of
the State of Washington (hereinafter referred to as the "City").
WHEREAS, Chapter 39.34 of the Revised Code of Washington (RCW), the Interlocal
Corporation Act, allows governmental agencies to enter into agreements that provide for the
efficient use of their powers and to cooperate with each other in providing services; and
WHEREAS, the County currently operates an internal diversion program for some first-
offense misdemeanor cases; and
WHEREAS, the current County program systems, management, and processes will petmit
the City to benefit from the County's operation of said program for a nominal fee, paid directly to
the County by a misdemeanor suspect;
NOW, THEREFORE, the County and the City agree as follows :
1. Pllrpose. The purpose of this Agreement is to allow the City to utilize the County's already-
existing internal diversion program for select municipal prosecution cases. The County's diversion
program is identified as the "Kittitas County Prosecuting Attorney Adult Misdemeanor Pre-
Charging Diversion Program, 2012 Version," as set forth more fully in, attached to this Interlocal
Agreement as "Exhibit A" (hereafter "County diversion program").
2. Services.
a. The City will send case referrals to the County to be considered for eligibility in
the County diversion program.
b. The County will process these cases through the diversion process using its existing
program systems and management. To enter the County diversion program, a
municipal case suspect will be required to pay the County diversion fee directly to
the County. The County will pay to the City the sum of $100 for the City's
administrative costs.
c. When a case complies with the program requirements, the County will inform the
City Prosecutor of said compliance. The County will maintain the diversion case
file and any related records. Nothing in this agreement changes in any manner the
City's obligations or practices as to its own records.
d. If an offender fails the program requirements, the County will inform the City
Prosecutor of the failure to comply. The County will then deliver the case file to
the City Prosecutor.
Interlocal Agreement for Misdemeanor Diversion Services -Page 1 of 5
3. Duration. This Agreement shall be valid for one year. This Agreement will be
automatically renewed unless either party gives 90 days advanced notice of its indication not to
renew.
4. Tetmination , Either party may terminate this Agreement by giving ninety (90) days' notice
in writing either personally delivered or mailed postage-prepaid by certified mail, return receipt
requested, to the Kittitas County Prosecuting Attorney (for the County) or the Ellensburg City
Attorney (for the City).
5. Tem1ination for D efa ult. If either party fails to perform any of the obligations of this
Agreement or becomes insolvent or is declared bankrupt or commits any act of bankruptcy or
insolvency or makes an assignment for the benefit of creditors, the other party may, by depositing
written notice to the defaulting party in the U.S. mail, postage prepaid, tenninate this Agreement.
6. Agreement Management. The Agreement administrator for each of the parties shall be
responsible for and shall be the contact person for all communication and billings regarding the
performance of this Agreement.
The Agreement administrator for the County is:
Prosecutor Greg Zempel
205 West 5th A venue
Ellensburg, WA 98926
The Agreement administrator for the City is:
Terry Weiner, City Attorney
City of Ellensburg
501 N. Anderson Street
Ellensburg, WA 98926
7. Payment. The County shall collect a fee directly from the offender to be supervised within
the program. The portion of the fee described in (2)(b ), above will be sent by the County to the
City. No payment will be made to the County by the City.
8. Billing Procedure. Per Section 2(b) above, the County shall remit the City's portion of the
program fee to the City on a quarterly basis. Payment shall be submitted to the City of Ellensburg,
Attention: Finance Department, 501 N. Anderson Street, Ellensburg WA 98926.
9. Force Majeure. Neither party will be liable to the other for any failure or delay in
performance under this Agreement due to circumstances beyond its reasonable control, including
acts of nature, acts of war, accident, labor disruption, acts, omissions or defaults of third parties,
and official, governmental, or judicial action not the fault of the party failing or delaying in
performance.
Interlocal Agreement for Misdemeanor Diversion Services -Page 2 of 5
10. M aintenal1ce of R eco rd ·. Each party hereto agrees to maintain books, records, and
documents using accounting procedures which accurately reflect all direct and indirect costs
related to the performance of the services described herein. Each party may examine the other
party's books and records to verify the accuracy of invoices. All books, records, documents, and
other materials relevant to this agreement will be retained for six (6) years after expiration of the
Agreement, and the Office of the State Auditor or other persons authorized by law and any persons
duly authorized by the parties shall have full access and the right to examine any of these materials
during this period. Each party will utilize reasonable security procedures and protections to ensure
that records and documents provided by the other party are not erroneously disclosed to third
parties.
11. Hold Harmless and Indemnification. Each Party shall hold harmless and indemnify the
other Party and its directors, officers, employees, agents and representatives against any and all
loss, liability, damage, or expense, but not including attorney's fees unless awarded by a court of
competent jurisdiction, for injury or death to persons, including employees of either party, and
damage to property, including property of either party, arising out of or in connection with
intentional, willful, wanton, reckless, or negligent conduct. However, neither party shall be
indemnified hereunder for any loss, liability, damage or expense resulting from its sole negligence
or willful misconduct. Any waiver in this section has been mutually negotiated by the parties and
this entire section shall survive the expiration or termination of this Agreement.
12. Warranty. Except as expressly stated herein, there are no express or implied warranties
respecting this Agreement or the services provided.
13. Ass ignment. This Agreement cannot be assigned, transferred or any portion subcontracted
by either party hereto without the prior written consent of the other party, which consent shall not
be unreasonably withheld.
14. Administration of Agreement. There shall be no separate legal entity created by the
Agreement. This Agreement shall be administered jointly by the County or designee and the City
or designee.
15 . P roperty. The terms of this Agreement do not contemplate the acquisition of any real or
personal property. Unless otherwise specifically agreed by the parties in writing, all property,
personal and real, utilized by the parties hereto in the execution of this Agreement shall remain the
property of that party initially owning it.
16. Com pliance with Laws. Each party hereto, in its performance of this Agreement, agrees to
comply with all applicable local, State, and federal laws and ordinances .
17. R~1ntion.ship of the Parties. No agent, employee, or representative of the City shall be
deemed to be an agent, employee or representative of the County for any purpose, and the
employees of the City are not entitled to any of the benefits the County provides to County
employees. No agent, employee, or representative of the County shall be deemed to be an agent,
employee or representative of the City for any purpose, and the employees of the County are not
entitled to any of the benefits the City provides to City employees.
Interlocal Agreement for Misdemeanor Diversion Services -Page 3 of 5
18. Di pules. In the event that a dispute arises under this Agreement, it shall be determined by
a majority vote of a three-member Dispute Resolution Board comprised of one representative
chosen by each of the parties hereto and a third chosen by the two selected parties. If said
detennination is not acceptable to the parties, the parties are entitled to use whatever remedies to
which they may be entitled at law or in equity.
19. J uti dict io n. Any legal dispute between the parties to this Agreement shall be governed by
the laws of the State of Washington, and any action to enforce this Agreement shall be brought in
Kittitas County, Washington.
20. Modification. The provisions of this Agreement may be modified or amended only by
written mutual agreement of the parties, executed by personnel authorized to bind each of the
parties.
21. Waiv er. A failure by either party to exercise its rights under this Agreement shall not
preclude that party from subsequent exercise of such rights and shall not constitute a waiver of any
other rights under this Agreement unless stated to be such in a writing signed by an authorized
representative of the party and attached to the original Agreement.
22. Agreement Not for Benefi t of Third Parties. This Agreement is entered into solely for the
benefit of the parties hereto and vests no rights in , or is it enforceable by, any third parties.
23. ve rabilrty. If any provision of this Agreement or any provision of any document
incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions
of this Agreement which can be given effect without the invalid provision, if such remainder
confirms to the requirements of applicable law and the fundamental purpose of this Agreement,
and to this end the provisions of this Agreement are declared to be severable.
24 . Elling. This agreement shall be filed or be posted online as required by RCW 39.34.040.
25 . Effective Date. This agreement shall take effect on January 1, 2019 .
Dated this day of 2018. --------------------~
[Remainder of page intentionally blank]
Interlocal Agreement for Misdemeanor Diversion Services -Page 4 of 5
CITY OF ELLENSBURG
City Clerk
ABSENT
O~Vice-Clrainnan
.,...-( ~
Cory Wright, Commissioner
Interlocal Agreement for Misdemeanor Diversion Services -Page 5 of 5
EXHIBIT A
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Kitlltas Counr, Prosccifllnu Anorney
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Killitas a;, 'IIRIYl'flJSlfCUIJ~fl ANOIRIJY
KITTITAS COUNTY COURTHOUSE ~:¾ "'~R-~"ii-@ R, , t., ZEIOJ'PEL '?'-:-,.. I
205 WEST FIFTH, ROOM 213
ELLENSBURG, WA 98926-3129
TELEPHONE: (509) 962-7520
FAX. (509) 962-7022 / SCAN: 9oZ•7S20
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CIVIL DIVISION
205 WEST FIFTH, ROOM 213
ELLENSBURG, WA 98926-3129
TELEPHONE: (509) 962-7664
FAX: (509) 962-7060
KITTITAS COUNTY PROSECUTING ATTORNEY
ADULT l\tIISDEl\tlEANOR PRE-CHARGING DIVERSION PROGRAI\tl
2012 Version
A Pre-Charging Diversion program is an alternative method for holding offenders accountable for
violating the law. A Pre-Charging Diversion program removes a criminal case from the processes and
procedures of formal court proceedings. It is designed to be used for first time offenders who have
committed minor offenses with the intention of saving judicial, prosecutorial, and defense resources.
The program is also intended to give an offender the opportunity to accept accountability for their
actions, participate in an evaluation process to determine if there are other issues of concern to be
addressed, and to provide the offender with an opportunity to atone for their actions by providing
service to the community. The benefit to the offender, if they accept responsibility for their actions
and successfully complete the diversion program, is the avoidance of a criminal record. This program
is similar to the program initially started in January, 2011, but with some modifications.
ELIGIBILITY FOR KITTITAS COUNTY PRE-CHARGING Dl\'ERSION PROGRAM:
In order to qualify for a Pre-Charge Diversion, the offender must meet ALL of the following criteria:
• Facing a potential charge of Minor in Possession of Alcohol (MIP), Possession of
Marijuana< 40 grams (POM<40), or Use of Drug Paraphernalia (misdemeanor level,
marijuana related) (UODP). Other crimes are not eligible for the diversion program.
• Must not have obstructed or resisted the investigating officer during the investigation
of the crime or treated the officer in a disrespectful manner
• NO prior convictions for any criminal offense, adult or juvenile.
• NOT have any pending criminal charges
• NOT be facing additional criminal charges from the same criminal investigation
• NO previous dismissal of charges resulting from a "Stay of Proceedings", similar
pretrial agreement, or prior participation in the Kittitas County Pre-Charging
Diversion Program.
llDiversion Program Outline-2012
~----~-: ----......_ .----------.... ~ ...........
K/ttltas CoulJ'IYProsecotJng Anorney
! :):-,.-------
THE DIVERSION PROCESS:
The investigating law enforcement agency will complete its investigation as normal, but rather than issue the
offender a citation to be filed with the Court, all charges of MIP, POM and/or UODP (or combination
thereof) will be referred to the Prosecutor for charging . IF THE OFFENDER IS ALSO FACING
ADDITIONAL CRIMINAL CHARGES AS A RESULT OF THE CRIMINAL INVESTIGATION,
SUCH AS A DUI, THE OFFICER SHALL FILE ALL CHARGES DIRECTLY TO THE COURT BY
CITATION.
EXAMPLES:
LE investigation leads to PC for Mr P -refer to Prosecutor
LE investigation leads to PC for POM -refer to Prosecutor
LE investigation leads to PC for POM and UODP -refer to Prosecutor
LE investigation leads to PC for MIP and POM and/or UODP -refer to Prosecutor
LE investigation leads to PC for MIP and DUI -LE cites both charges to court
LE investigation leads to PC for POM and trespassing-LE cites both charges to court
LE investigation leads to PC for POM and obstructing-LE cites both charges to court
Upon receipt of a law enforcement report on eligible cases/charges, the legal secretary will review the
offender·s criminal history in order to detennine eligibility.
If the offender is not eligible based upon criminal history review, the prosecutor will review the case for
probable cause and legal sufficiency and a charging decision will be made.
If the offender is eligible for the Pre-Charging Diversion program, then the prosecutor will review the case to
assure probable cause and legal sufficiency and then will send the offender a letter out I ining the nature of the
charges faced, an explanation of the Pre-Charging Diversion program, a copy of the Pre-Charging Di version
Agreement, and the Voluntary Witness Statement admitting to the elements of the offense and indicating
where the alcohol and/or drugs were obtained.
If the offender signs and returns a copy of the Pre-Charging Diversion Agreement and the Voluntary Witness
Statement within two weeks, the deputy prosecutor will review the documents to confinn sufficiently
completed, and if sufficient, the deputy prosecutor and/or legal secretary will send the offender a letter
indicating acceptance into the program, a reminder of the conditions and time frames for compliance with the
program and specifying how and by when the required non-refundable payments are to be made for the
program.
Simultaneously with submitting the acceptance letter to the offender, the deputy prosecutor and/or legal
secretary shall send electronically copies of the police reports, Pre-Charging Diversion Agreement,
Voluntary Statement and all correspondence to the investigating law enforcement agency records custodian.
If the offender completes the documentation but makes an error or alters the tenns in any fashion, they will
be given one opportunity to correct the deficiencies. This will be accomplished by the deputy prosecutor
and/or legal secretary sending the offender a letter stating what was wrong with the original application, what
2IDiversion Progr a m Outline-2012
l{Jflltas CtJunw7'rosocutlnu 11norn111 r -~-~ • I o o I I
they must do to correct the deficiency, along with the required documents, and providing an additional two
weeks to complete and re-submit the documents. If the offender corrects the problem within that two week
period, the case wi II be processed accordingly, and at that time all documentation will be sent to law
enforcement to complete their records.
If an offender is sent a letter offering entry into the Pre-Charging Diversion Program and foils to return the
documentation within two weeks, or if they foil to correct any deficiencies in an initial application within the
subsequent two week period, the deputy prosecuting attorney shall make a charging decision and work with
the legal secretary to prepare the appropriate charging documents to bring the offender to court to commence
processing their case through the criminal justice system.
Upon acceptance of an offender into the program, the Prosecuting Attorney's Office will keep the file in an
active status for six (6) months. The Prosecuting Attorney's Office shall monitor compliance with the
Agreement during the period of supervision. The Prosecuting Attorney's Office, upon successful completion
of the terms and conditions of the Agreement and upon the expiration of the six (6) month supervisory
period, shall then process the case into closed status with a letter to the offender that they have successfully
completed the program and their case has been closed and that charges will not be filed.
During the period of supervision of the Agreement, if the Prosecuting Attorney's Office determines, in its
discretion, that a violation of the Agreement has occurred, the deputy prosecutor and/or legal secretary will
notify the offender of the violation and intent to revoke the Agreement with the filing of criminal charges in
the district court, including with the notification a copy of the charging document and summons to appear in
court. Copies of all such documentation shall be electronically submitted to the responsible law enforcement
agencies records custodian.
The arraignment on the criminal charges shall be set upon the calendar in the respective courts following the
usual procedure for newly charged cases.
An individual who has entered into a Pre-Charging Diversion Agreement, and failed to complete the
program, shall not be eligible, upon the filing of charges, for a "Stay of Proceedings." An offender who was
eligible for the Pre-Charging Diversion Program, but who failed to return the agreement as specified above
and had charges filed against them, will be eligible for a "Stay of Proceedings", but charges will not be
dismissed after filing in order to enter the program.
PR E-C HARGl 1 G DIVERSION PROGRAM RE QUIREM ENTS AN D ON DJTI ON
FINES AND FEES:
All fines and fees are to be paid to the Kittitas County Prosecuting Attorney's Office in the fonn of a
certified cashier's check or money order, with a total of two checks being drawn:
One in the amount of S400.00 in favor of the Kittitas County Prosecuting Attorney. (Of this amount,
5250 is for administrative costs as previously detennined when the diversion program initially began
on January, 2011: 5 I 00 is for 6 months ofrecord check supervision, which is consistent with the cost
assessed by Misdemeanor Probation for the same service; and 550 is for costs related to monitoring
3IDiversion Program Outline-2012
KIIIIIIIS COl/{IIY PiDStJcui((!U Anornoy
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participant's completion of community service hours and compliance with getting the alcohol/drug
evaluation and completing any required follow-up);
One in the amount of SI 00.00 in favor of the investigating law enforcement agency's diversion
program fund as indicated on the Diversion Agreement.
Payment of fines and fees must be made at the time of entering into the Diversion Agreement.
OTHER REQUIREMENTS OF THE AGREEMENT:
I. A sworn statement signed under penalty of perjury admitting to the elements of the offense and
identifying the supplier of the alcohol and/or drugs;
2. Proof of completing an alcohol/drug evaluation from a certified treatment agency and recommended
follow-up;
3. Proof of completing 14 hours of probation-approved community service hours
The offender must also agree not to commit any new crimes. A mere arrest for a new criminal offense
counts as a violation of the agreement.
-ft /1
Adopted this the~ day of L/cce~-~ JQ<:c:._r'·, 2011 . a -7 ~,r';::u;
G ·err-~el / /
_ ~a County Prosecuting Attorney
4IDiversion Program Outline-2012