District Attorney Dan Dow is asking San Luis Obispo County officials to reinstate nine days of paid time off that deputy district attorneys historically enjoyed, although the practice was never part of their labor contract and was ended after an investigation by the county auditor in April.
The request comes as the union representing the majority of the trial attorneys at the District Attorney’s Office is in labor negotiations with the county.
At issue is a long-standing practice by the District Attorney’s Office to give deputy district attorneys the nine days of paid time off annually, on top of their regular vacation days, in return for being on call after hours for two weeks each year. County Auditor Jim Erb declared in April that the practice violated the union’s labor contract and the state Constitution.
Erb confirmed Tuesday that he received a letter from Dow seeking to revisit the issue of the days off but said he could not discuss specifics of the letter.
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County Counsel Rita Neal also said she could not release the letter Tuesday because Dow sent it to both her and Erb, rendering it a nonpublic document because of attorney-client privilege.
However, Neal said it is the county’s position that the matter is a compensation issue and needs to be approved by the Board of Supervisors after labor negotiations.
Dow issued the following statement Tuesday via email:
“Since the matter first came forward in April, the District Attorney’s Office has been engaged in an ongoing discussion with the County about the 30-plus year practice of adjusting work schedules for salaried attorneys who perform on-call assistance to law enforcement.”
Dow confirmed a meeting is scheduled with Erb on Thursday to “attempt to resolve the issue,” he wrote.
In April, Dow announced the findings of an investigation by Erb, which was triggered by a tip to the county’s whistleblower hotline. The Auditor’s Office reviewed payroll records for 2014 and 2015 and interviewed District Attorney’s Office staff.
Because the benefits were not detailed in the employee union’s labor agreement, the policy violated the state Constitution, which bans compensation to public employees outside of the terms of their contract, Erb said.
The practice had been ongoing since the late 1970s.
Deputy district attorneys, as part of their jobs, take turns carrying a “search warrant phone” after business hours for two weeks each calendar year. The assigned employee was required 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 on-call deputy district attorneys also answered various after-hours calls.
As compensation, they received nine days of paid time off, in addition to Board of Supervisors-approved benefits including vacation, holiday, sick, personal and administrative days off.
Dow said in April that he would immediately eliminate the practice but defended his staff, saying the time off had been granted in good faith.
The union that represents the deputy district attorneys, the San Luis Obispo County Government Attorneys Union, has begun labor negotiations with the county to adopt a new Memorandum of Understanding. Their previous contract expired June 30.
Neal said it is the county’s position that any return of the compensatory time off must be through the negotiation process.
Andy Cadena, president of the attorneys union, was out of the office Tuesday and did not immediately respond for comment.
Dow, elected as district attorney in June 2014 in a heated campaign that pitted management against labor, enjoyed the support of 23 of the office’s prosecutors.
Erb said his office calculated the total salary costs for those unauthorized days off in 2014 was $176,721.
In his email, Dow said county codes allowed him to adjust work hours and days and the on-call practice didn’t cost the county more because the deputy district attorneys have a fixed salary.
“The long-standing practice of not providing compensation to attorneys for on-call duty, but rather adjusting work schedules has not cost the taxpayer a dime, and in fact has saved … hundreds of thousands of dollars over the years,” Dow wrote.
Erb said his office has records dated back to 2008 in which the District Attorney’s Office recorded the use of the time off.
The long-standing practice could represent a risk for litigation against the county by local taxpayers, though no legal challenge has yet been made, Neal said.