Deputy DAs received higher benefits for on-call work than other employees

Deputy district attorneys in San Luis Obispo County have historically received more benefits for being on call after hours than any other county employee group, and more than their counterparts in neighboring counties, a Tribune investigation shows.

In addition, data provided by the San Luis Obispo County Human Resources Department, as well as information from the Ventura, Santa Barbara, Monterey, Kern and Marin county district attorney offices, show that no other office gives paid time off or other compensation for on-call duties without having the policy written into an employee labor contract.

The issue of after-hours on-call pay arose in April when the county Auditor’s Office found that the District Attorney’s Office’s practice of compensating deputies for taking phone calls after business hours violated state law because it was never included in their union contract.

Although District Attorney Dan Dow stopped the practice — which was at least 30 years old — he argued that it’s an issue of work scheduling, not compensation, and that he should be able to amend his employees’ schedules without the union negotiating a policy into its labor contract.

County Auditor Jim Erb disagreed.

“I do not believe standby duty is the same as regular work,” he said in an email. “In fact, where it is authorized by a (labor contract), it is paid at a much lower hourly rate and does not earn benefits such as vacation and sick leave or retirement benefits.”

Because they are salaried employees, deputy district attorneys accrued those benefits during their paid days off.

The issue remains unresolved.

Most of the 30 San Luis Obispo County deputy district attorneys rotated on-call duties, carrying work cellphones after hours for two-week periods, answering calls as needed. The duties vary and may include reviewing a police officer’s requests for a search warrant before it goes to a judge, giving legal advice or going to a crime scene after hours.

In exchange, the deputies were granted nine days of paid time off. They were not able to cash out that time.

Since April, deputies have performed the duties without any compensation.

According to the county Human Resources Department, those nine days off are worth an average of $5,991 per employee per year. The total salary costs for the deputy district attorneys’ on-call pay in 2014 was $176,721, Erb said previously.

Other counties

In defending the policy in April, Dow said neighboring counties have similar practices. However, the local policy was more generous than those in neighboring counties, The Tribune’s investigation found.

Ventura County, for example, gives its deputies, two of whom are on call at any given time, four days of paid time off for every two weeks on call, Ventura Chief Deputy District Attorney Chuck Hughes said. Nearly 100 deputy district attorneys work there, though not all rotate those duties, he said.

The office’s attorneys union negotiated that policy in its labor agreement in 2014, Hughes said.

Monterey County Assistant District Attorney Jeannine Pacioni said her office compensates deputies a flat rate of $553.50 above their normal wage for every 14 days of on-call time. The policy also is written into their labor agreement.

Santa Barbara County Chief Deputy District Attorney Mag Nicola said his office keeps two deputies, each assigned to either the south or north county, on call. They rotate on-call duties every 14 days and are compensated a flat rate of $450 beyond their normal pay. Their compensation is specified in their contract.

Kern County Chief Deputy District Attorney Mark Pafford said that even though his deputies’ contracts grant additional pay of one-fourth of their hourly wage while on call, deputies in his office do not perform on-call duties.

Deputies in Marin County received the highest monetary compensation among the counties reviewed for this article. According to Assistant District Attorney Barry Borden, most deputies there are given a flat rate of $2,000 for 14 days of on-call duty.

Other county workers

While San Luis Obispo County deputy district attorneys have been given paid time off for on-call duties, no other county employee group gets that benefit.

All other employee groups are paid an hourly rate for on-call work, and the practice is written into their union contracts, according to the county Human Resources Department.

For example, most members of the San Luis Obispo County Employees’ Association are paid $2.75 an hour while on call, and nurses and other members of the union who respond after hours to reports of domestic and sexual abuse are paid $3.35 an hour.

Members of the Deputy Sheriffs’ Association receive $2 per hour while on call after hours.

At an impasse

In light of the county’s findings, the deputies recently voted to no longer work on call, effective Aug. 31, said Andy Cadena, president of the San Luis Obispo Government Attorneys’ Union.

Law enforcement officers will still have contact numbers for specific deputy district attorneys from the on-call list, and officers can try any deputy they wish, but there will be no guarantee the attorney will be available, Assistant District Attorney Lee Cunningham said. In cases of murder, sexual assaults, domestic violence and drug crimes, Cunningham added, the office has assigned attorneys whom officers are to call first.

Until an agreement is reached, the deputy district attorneys will not be compensated for that time.

On July 23, Dow met with Erb and County Counsel Rita Neal to revisit the issue. At that time, Dow proposed trimming the policy to four days off in exchange for 14 days of on-call duty, similar to Ventura County.

The county held firm that the policy needed to be negotiated into the union contract.

“We put it on the table, and it landed with a thud,” Cunningham said.

“What (Dow has) proposed is not unreasonable and, I think, a good compromise, but it needs to be negotiated,” Erb said. “How can you ignore the fact that everybody else does it that way?”

Cunningham said the District Attorney’s Office asked county counsel to provide a written legal opinion, but none has been provided. Dow then sought outside legal counsel from Fullerton-based law firm Jones & Mayer, which specializes in representing law enforcement agencies.

The firm sided with the District Attorney’s Office, noting that because deputies are salaried, the practice is a lawful adjustment to work schedules as authorized by ordinances approved by the county Board of Supervisors.

Possible lawsuit

Neither Erb nor Cunningham said he knew where the process will go from here.

Dow declined to comment publicly on the issue because of a possibility of litigation — the county could sue the attorneys union for reimbursement of the salary costs for 2014 if the impasse continues.

“I’m not going to say that isn’t a possibility,” Erb said. “But our hope is it doesn’t come to that.”

Meanwhile, the county and the attorneys union continue to move through what numerous county and legal sources said are especially contentious negotiations for a new two-year contract specifying pay and benefits. Their previous contract took effect in July 2013 and expired June 30.

This story was originally published August 22, 2015 at 5:27 PM with the headline "Deputy DAs received higher benefits for on-call work than other employees."