San Luis Obispo County District Attorney Dan Dow’s request to pay a normally nominal $2,800 bill to a private law firm turned into an hourlong discussion in which the Board of Supervisors made a rare decision to reveal closed session discussions before a back-and-forth between Dow and Supervisor Bruce Gibson led to an also-rare denial of Dow’s request.
It was not immediately clear Tuesday who will now pay the bill.
Dow said following the hearing that his office is researching whether the county ruling can be appealed to San Luis Obispo Superior Court.
In a 4-1 vote, county supervisors denied Dow’s request to use funds from his department budget to pay $2,874.65 to Fullerton-based Jones & Mayer, a law firm specializing in representing law enforcement agencies, for services rendered between June and August. The firm provided a legal opinion to the DA’s Office on its longtime policy of giving its deputies nine days of paid time off in exchange for two weeks of on-call duties per year.
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The issue of after-hours on-call pay arose in April when a whistleblower complaint led to an investigation by the county Auditor’s Office. The auditor found that the DA’s Office practice of compensating deputies for taking phone calls from police after business hours violated state law because it was not included in their union contract.
Dow immediately stopped the practice — which was at least 30 years old — but argued that it was an issue of work scheduling, not compensation, and that he should be able to amend his employees’ schedules without negotiating with the union to include a policy in the labor contract. The county disagreed.
The taxpayers, you have at least proposed to bill for information you didn’t use, and it brings to attention how you handle whistleblower complaints.
Supervisor Bruce Gibson to District Attorney Dan Dow
Dow hired Jones & Mayer without approval from the Board of Supervisors, leading the county auditor to decline to authorize the bill payment unless it went to the board for approval. The firm later drafted a legal opinion agreeing with Dow’s interpretation of the issue.
However, Dow acknowledged at Tuesday’s Board of Supervisors meeting that the compensation issue is being negotiated in ongoing talks between the county and the San Luis Obispo County Government Attorneys Union, which represents the office’s prosecutors.
During Tuesday’s meeting, Dow took heat from Gibson, who reminded Dow that during a closed session meeting on April 7, supervisors told him that the on-call practice had to cease immediately. Dow agreed at the time. He later hired the law firm in June.
Closed session meetings are confidential and not discussed in public. Gibson made a rare motion to waive confidentiality of the April 7 meeting’s discussion in order to grill Dow. The motion passed 4-1 with Supervisor Debbie Arnold dissenting.
“There’s much more involved in this than the amount of money,” Supervisor Frank Mecham agreed. “I say let’s hear it.”
Despite a recommendation from County Auditor Jim Erb that the county foot the bill because Dow apparently was acting in good faith and did not know he needed board approval, Gibson disagreed and recounted the April 7 meeting.
“So did you ask the board whether we would approve this (on-call) compensation?” Gibson asked Dow.
“It’s not a yes or no question,” Dow said, adding that the April meeting was “not very productive.”
“There was not a willingness by some in this room now to (understand) the history,” Dow added. “The board wouldn’t hear from me.”
I didn’t seek additional information until after the stakes were raised.
District Attorney Dan Dow
Gibson said the Office of County Counsel gave Dow its legal opinion against the policy; Dow characterized it as nothing more than a talking points email.
About that time, the Auditor’s Office floated the idea of recouping the money from the DA’s Office for total salary costs for the deputy district attorneys’ on-call pay in 2014. That amount came to $176,721, Erb said previously, and could be recouped by the county suing the attorneys union for reimbursement. That idea was abandoned.
But because of that possibility, Dow said he felt he had to gather an outside legal opinion.
“That changed the entire game,” Dow said. “I didn’t seek additional information until after the stakes were raised.”
“Why were you out there seeking opinion on a legal matter your employees have a union to represent them for?” Gibson asked. “The taxpayers, you have at least proposed to bill for information you didn’t use, and it brings to attention how you handle whistleblower complaints.”
Dow said during Tuesday’s meeting that he was “displeased” with the board airing a closed session exchange but Gibson defended the discussion, saying the situation showed an “effort by the DA to get a result rather than going the straight route.”
Prior to the final vote, Arnold said the on-call pay was now a moot point and that she was “saddened” that the board would make closed session discussions public. “This is so damaging for us in the future,” Arnold said.
In November, Dow endorsed Arnold in her 2016 re-election campaign.
Dow now assigns his management staff to field after-hours calls from law enforcement as needed, and deputies no longer perform the duties. The deputies union remains in labor negotiations with the county.