Santa Clara County Executive Jeff Smith is asking the state Attorney General to investigate whether District Attorney Jeff Rosen broke any laws by giving his top deputies extra time off to make up for a 5 percent bonus they lost as part of countywide cutbacks.

Rosen's end run around the pay cut is controversial because it allows the attorneys -- who are among the office's highest-paid lawyers with salaries of $195,340 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 contract negotiated by the Government Attorneys Association over Rosen's objections.

Indicating the level of scrutiny Rosen's actions are receiving, Smith, the county's top administrator, will send the letter to Attorney General Kamala Harris after consultation Tuesday with the four-member Board of Supervisors. Smith does not need their approval to send the letter, but only Supervisor Joe Simitian expressed reservations.

"We're talking about a significant amount of benefit -- more than a quarter of a million dollars," Smith said. "I can't just turn my back.

"If this had been another department head, I certainly would have asked the DA to get involved and investigate," Smith added. "In this situation, I don't have that option."

Rosen said Tuesday that he welcomes an independent review. However, he noted his close ties to Harris.


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"I have the highest regard for the Attorney General," he said in a written statement. "However, I told the County Executive that the Attorney General has endorsed my candidacy for re-election."

But Harris' communication director and senior adviser, Gil Duran, said Harris has not endorsed anyone in any of the state's 2014 races for district attorney.

Smith could have asked the County Counsel's Office to look at whether rules or laws were broken. But lawyers there don't have prosecutorial powers. The office also works closely with county department heads, including Rosen.

Rosen has said he had the authority to grant the leave, but Smith on Monday ordered him to give out only 40 hours a year -- far less than the hundreds of hours he'd been granting.

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.

But a union lawyer contends that Rosen violated the state government code barring the use of public resources for an unauthorized purpose by giving the paid administrative leave time to 15 of his supervising deputy district attorneys. Those attorneys also belong to the GAA. The union also claims Rosen may have committed the crime of misappropriating public funds for the same action.

Others say it's a matter of ethics, not of the law.

The Attorney General's Office did not respond to comment.

Smith said that if the Attorney General decides not to take up the matter or finds no laws were broken, the county still intends to tighten its rules about the use of paid leave. He has said that if other department heads also misused leave time, "the county budget would be totally out of control."

Supervisor Ken Yeager said bringing the matter to the attention of the Attorney General is the right thing to do.

"This situation has brought up important questions that should be answered in an open and transparent manner," Yeager said. "An unbiased third party is our best bet for providing clarity to this situation."

In contrast, Supervisor Joe Simitian said everyone should "take a deep breath and count to 10" before going outside the county for an opinion. He said he will ask the County Counsel's Office to let the board know whether Rosen's actions are permissible under state law, county ordinances, county policies and procedures, and the union contract.

Regardless of whether any laws or rules were broken, Simitian says the practice should be limited, noting this is not the first time the issue has come up in regard to government employees. Simitian said members of Gov. Arnold Schwarzenegger's administration used unpaid furlough days off -- meant to save the state money -- in lieu of vacation, and then cashed in the vacation time.

Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/tkaplanreport.