Santa Clara County officials Monday ordered an immediate cap on the amount of extra time off District Attorney Jeff Rosen can give his supervising lawyers, saying the number of hours he gave them in the past two years to make up for a pay cut appears "irregular and excessive."
The district attorney's use of administrative leave has escalated sharply since 2011, when the Government Attorneys Association cut the 5 percent annual bonus that supervising attorneys had long received as part of a package of temporary concessions. Angered by the cut, Rosen used the paid time off in an unconventional manner as compensation.
Last year, Rosen gave about 2,200 hours of free leave time to his 15 supervising attorneys; in contrast, in the last four months of 2011 when the contract kicked in, he granted only 538. As of Monday afternoon, under the county's edict, he can give them each only 40 hours a year -- five times less than the 204 hours he bestowed on one attorney last year.
Rosen, who insists he did nothing wrong, said the directive implicitly confirms that he had the authority to grant the leave, although he did not address the claim it was "irregular and excessive." But the practice is controversial because it allows the attorneys -- who are among the office's highest-paid lawyers at salaries of more than $180,000 each -- to preserve vacation time they might otherwise have used and sell it back to the county later for cash. The vacation payouts would put back in their pockets about the same amount of money they lost in the pay cut.
The creative end-run around the contract surfaced late last month via an anonymous letter to the county executive. The GAA has apparently known about the practice for at least six months. In January, the board of the union voted to seek a legal opinion about it. But union officials didn't go public with their concerns until news reports appeared this weekend -- prompting them to suddenly accuse Rosen of committing a civil violation and possibly a crime involving the misuse of public funds.
When the news broke Saturday evening, county officials reacted mildly, saying they were launching an investigation. By Sunday, they warned Rosen to retain all records about the issue for the past three years, including emails. Today, they swung into action, imposing the cap on leave time in a formal letter to Rosen from Deputy County Executive Luke Leung.
The county's top-ranking executive, Jeff Smith, said that if all of the county's roughly 30 department heads did an end-run around their unions and allowed employees to hold onto their lucrative vacation days and then cash them in under the widespread "sell-back" program, the county budget would be "totally out of control." Smith's investigation may wind up forcing the supervising attorneys to return some of the administrative leave and be docked for vacation time instead. But Smith doesn't have any prosecutorial powers.
Rosen has described the supervising attorneys, including the homicide chief and head of the gang unit, as extremely hardworking, committed prosecutors who are on call 24 hours a day and are essential to the office's operation and to public safety. The bonuses for supervising attorneys will be restored June 24 under the GAA contract.
In an email to his staff of about 185 lawyers, he said there was nothing underhanded about his use of administrative leave.
"All effected (sic) prosecutors, including their GAA representatives, were aware of this policy. Many expressed their support. None objected. This was not a 'secret' policy."
But the union's president, Max Zarzana, disputed Rosen's account.
"At no time did DA Rosen or anyone in his administration inform the GAA Executive Board of his scheme to replace the suspended 5% lead differential with an hour for hour exchange of 5% of administrative leave," Zarzana said. "His contention that he did is simply untrue."
The issue has exacerbated tensions in the already edgy office. In 2010, Rosen narrowly won the district attorney's race with the support of many of the union officials who are now criticizing him for giving out paid leave to supervisors.
Relations have deteriorated for a number of reasons, including the much harsher discipline Rosen has been meting out for misconduct. While he contends his crackdown is warranted, some union members bristle at what they claim is a pattern of favoritism and unfair treatment.
Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/tkaplanreport.