County auditor declares comp time for deputy DAs violates state constitution

Investigating a complaint from a whistleblower hotline created 18 months ago, the San Luis Obispo County auditor found a decades-old practice by the District Attorney’s Office to give deputies paid time off in exchange for on-call duties violated their labor agreement and the state constitution.

District Attorney Dan Dow announced the finding Thursday and said he has eliminated the practice.

On Wednesday, county Auditor Jim Erb sent the DA’s Office the findings stemming from a complaint by a confidential tipster on the county hotline, which activated in November 2013.

The complaint concerned an informal system within the DA’s Office, in which staff members received nine days of compensation time per year without the legal authority for the paid time off.

The Auditor’s Office investigated the complaint by reviewing payroll records for the 2014 and 2015 calendar years and interviewing DA’s Office staff.

According to the report, deputy district attorneys, as part of their jobs, rotated duties carrying a “search warrant phone” after business hours for two weeks each calendar year.

The assigned deputy district attorney had to stay in the county and be on-call 24 hours a day to review search warrant requests from law enforcement agencies prior to them going before a judge. The deputy district attorney also answered various after-hours calls while on call.

As compensation, deputy district attorneys received nine days of paid time off, in addition to Board of Supervisors-approved benefits — vacation, holiday, sick, personal and administrative days off.

Erb said in his report that the comp time is not authorized under the county’s memorandum of understanding with the San Luis Obispo County Government Attorneys’ Union (SLOGAU), which represents most of the county’s trial prosecutors.

Because the comp time off was not stipulated in the labor agreement, the policy violates the state constitution, which bans extra compensation to public employees outside of the terms of their contract, Erb said.

On Thursday, Dow sent a memo to Erb saying he would immediately eliminate the compensation practice.

However, Dow defended his staff, saying the unauthorized practice has been followed for decades in good faith.

Dow, who joined the San Luis Obispo County DA’s Office in December 2007, illustrated his point in his report by noting that Assistant District Attorney Lee Cunningham, who joined the office in 1985, was told he would receive the benefit. Discussions with other current and former staff led him to believe the practice began sometime between 1978 and 1984.

“(It) is important to note that the deputy district attorneys who have received (compensated time off) have done so relying in good faith on the department’s representation for more than 30 years, that it was a component of the employee benefit package,” Dow wrote.

Dow also noted that similar on-call compensation is commonplace for prosecutors in neighboring counties, including Santa Barbara and Monterey.

Erb said Thursday that DA investigators will continue to receive compensated time off under the terms of the contract with their union, the District Attorney Investigators’ Association.

Attorneys’ union President Andy Cadena said Thursday he had received word of the auditor’s report that afternoon and had not yet conferred with union membership, but he said the decision would not keep prosecutors from a key component of their jobs.

“We’re not going to change our duties. You may have an officer in Pismo Beach that needs a search warrant signed in the middle of the night, and we can’t have them waiting hours to get it (reviewed),” Cadena said. “Public safety is the priority.”

The union’s current contract expires June 30, and negotiations with the county are expected to begin early next month. Asked whether the union will pursue the matter during upcoming negotiations, Cadena said it was too soon to tell.

“We’re hopeful we can come to some kind of agreement, whatever that may be,” Cadena said.

This story was originally published April 9, 2015 at 8:24 PM with the headline "County auditor declares comp time for deputy DAs violates state constitution."