News

County asks state Attorney General to investigate DA Rosen

The California Attorney General has been asked to investigate a pay-compensation policy District Attorney Jeff Rosen has given to supervising attorneys in his office for the past 16 months.

County Executive Jeff Smith on Tuesday asked the Attorney General to look at Rosen's policy, which has created a furor. An NBC investigative report showed he circumvented a contract between the county and the union by giving his top attorneys administrative leave to make up for lost compensation.

Rosen said he gave 15 of his top attorneys administrative leave to counteract the cut in differential pay.

Top-paid supervising deputy district attorneys received a 5 percent differential-pay cut as part of a contract deal between the Government Attorneys Association union and Santa Clara County that started Sept. 5, 2011.

The cut spared lower-level deputy district attorneys and the courts from a furlough day as part of union concessions. The agreement saved the county millions of dollars, said Christopher Platten, an attorney for the GAA. The concessions are to remain until June 23, 2013.

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But Rosen's arrangement allowed supervising attorneys to preserve paid vacation time that can later be cashed out as unused vacation, either annually or when an employee leaves. That means the 104 hours of administrative leave granted to the supervising attorneys is the equivalent of preserving the 5 percent cut in terms of pay, Platten said by phone on Monday.

Supervising deputy district attorneys receive salaries of about $193,000 annually after the differential cut, he said.

Platten said in an opinion letter to union officials that Rosen's policy could be illegal.

But Rosen maintains he did nothing wrong. In a letter he wrote to staff on April 8, he said that county and union officials were aware of the policy, and the county had supported it.

"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," he said.

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But GAA President Max Zarzana disputed Rosen's claims.

"That's flat-out untrue," he said by phone on Tuesday.

Zarzana said that Rosen never informed him or the GAA of the policy.

"To this day, the GAA board has never sat and discussed this 'policy' in any format with any member of executive management. Because we were never informed until the NBC story that there was an official policy of awarding 5 percent, we were unaware until this weekend of the legal issues surrounding admin leave," the GAA said in a written statement.

Rosen's policy could cause the county millions of dollars if other labor agreements are nullified regarding cost-saving cuts, Zarzana said by phone on Tuesday. Many county-employee contracts have a "Me Too" clause, which could open a Pandora's box for the county if other unions decide to throw out their concessions, he said.

Overall, the unions gave $75 million in concessions to the county, he said.

"We're talking potentially millions of dollars of givebacks to other employees," Zarzana said.

In his letter to employees, Rosen called the county and union agreement unfair.

Lower-paid deputy district attorneys took a pay cut of approximately 3 percent, while their supervisors took an 8 percent pay cut -- the 3 percent plus the 5 percent reduction, he said.

"The result of this unequal treatment was bitterness and divisiveness in the DA family. I believed then, and I believe now, that removing the 5 percent differential was fundamentally unfair. I then spent weeks working with the county to find a way to restore it. Those efforts were unsuccessful," he wrote in the letter.

 

The contract expressly included the district attorney's authority to grant administrative leave, he added.

"It is, and was well known, and has been thoroughly documented. In fact, as recently as last week, County Executive Jeff Smith told our chief assistant that such use of administrative leave is authorized. Other East Wing officials, including attorneys in the County Counsel's office, confirmed that we were authorized to grant administrative leave under the terms of county policies and the MOU," he said.

But Zarzana said while Rosen can grant administrative leave pursuant to the contract, "he does not have authority to violate the contract between Santa Clara County and the GAA, which suspended the lead-pay differential."

Zarzana said the GAA represents three groups of county lawyers: deputy district attorneys, deputy public defenders and child-support services lawyers, who all had the same 5 percent cut. But only Rosen's top 15 supervisors received the administrative leave arrangement, which left out other groups in the department, including criminalists and other investigators, he said.

"It seems pretty unfair that he focused on one small group of people," Zarzana said.

Platten said Rosen had opposed the pay cut during negotiations. On Monday, Platten blasted the district attorney for what he said was "probably a gift of public funds." The costs to taxpayers could be in the hundreds of thousands of dollars, he added.

"Mr. Rosen has made it real clear that he circumvented the memorandum of understanding by providing administrative leave to the supervising deputy district attorneys in an amount equal to 5 percent of full-time work hours for at least one full calendar year," he said.

Rosen may have violated civil and criminal law, Platten wrote in an April 7, opinion letter to union Zarzana following the NBC investigative report.

"This is an additional cost to the county and a financial benefit to the employee. It is clear that Rosen has approved a gift of public funds in violation of Government Code, Section 8314. (unlawful use or permitted use of public resources for personal or other purposes not authorized by law). He may have violated Penal Code Section 424 (illegal use or dispersion of public funds without authorization or knowingly keeping a false account.)

"Rosen spent public funds in the form of administrative leave for the private benefit of individual supervising deputy district attorneys," Platten wrote.

The union should inform its members that receipt of the administrative leave constitutes a gift of public funds, and it should recommend members immediately offer to re-credit the county for the administrative leave and cooperate with any investigation, Platten said in his letter.

Rosen maintains he instituted a transparent policy regarding the additional leave to recognize his supervisors for their additional duties, experience, and responsibilities.

He said the issue cropped up after a recent discovery that a supervisor's paycheck hadn't taken the 5 percent hit that it was supposed to, 1.5 years after the cut should have gone into effect. When the county notified the DA's office that the supervisor was receiving extra, the DA's office agreed that the employee was not entitled to it and that the employee is paying it back.

The administrative leave was also discussed at that time. In his letter Rosen said the county counsel confirmed:

"Administrative leave hours were properly granted ... as authorized by the Santa Clara County District Attorney's Policy and Procedure Manual ... These hours have been documented in our payroll system pursuant to a process approved by the district attorney with the assistance of County Labor Relations."

But the GAA wrote on Monday: "The GAA is unaware of a formal letter or message being sent to any district attorney members of GAA advising them of this policy. The district attorney's Policies and Procedures Manual (PPM) has never been updated to reflect Rosen's new policy. The county informed both GAA and Jay Boyarsky that the only valid policies are those which are in writing in the PPM or written agreements with the union."

County officials did not comment on Rosen's assertions.

Rosen said in a statement on Tuesday that he welcomes the Attorney General's review.

"I have the highest regard for the Attorney General. However, I told the County Executive that the Attorney General has endorsed my candidacy for reelection as district attorney and may not be the appropriate person to review this matter due to the potential conflict of interest," he said.

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Sue Dremann is a veteran journalist who joined the Palo Alto Weekly in 2001. She is a breaking news and general assignment reporter who also covers the regional environmental, health and crime beats. Read more >>

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County asks state Attorney General to investigate DA Rosen

by / Palo Alto Weekly

Uploaded: Tue, Apr 9, 2013, 9:10 am
Updated: Tue, Apr 9, 2013, 6:43 pm

The California Attorney General has been asked to investigate a pay-compensation policy District Attorney Jeff Rosen has given to supervising attorneys in his office for the past 16 months.

County Executive Jeff Smith on Tuesday asked the Attorney General to look at Rosen's policy, which has created a furor. An NBC investigative report showed he circumvented a contract between the county and the union by giving his top attorneys administrative leave to make up for lost compensation.

Rosen said he gave 15 of his top attorneys administrative leave to counteract the cut in differential pay.

Top-paid supervising deputy district attorneys received a 5 percent differential-pay cut as part of a contract deal between the Government Attorneys Association union and Santa Clara County that started Sept. 5, 2011.

The cut spared lower-level deputy district attorneys and the courts from a furlough day as part of union concessions. The agreement saved the county millions of dollars, said Christopher Platten, an attorney for the GAA. The concessions are to remain until June 23, 2013.

But Rosen's arrangement allowed supervising attorneys to preserve paid vacation time that can later be cashed out as unused vacation, either annually or when an employee leaves. That means the 104 hours of administrative leave granted to the supervising attorneys is the equivalent of preserving the 5 percent cut in terms of pay, Platten said by phone on Monday.

Supervising deputy district attorneys receive salaries of about $193,000 annually after the differential cut, he said.

Platten said in an opinion letter to union officials that Rosen's policy could be illegal.

But Rosen maintains he did nothing wrong. In a letter he wrote to staff on April 8, he said that county and union officials were aware of the policy, and the county had supported it.

"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," he said.

But GAA President Max Zarzana disputed Rosen's claims.

"That's flat-out untrue," he said by phone on Tuesday.

Zarzana said that Rosen never informed him or the GAA of the policy.

"To this day, the GAA board has never sat and discussed this 'policy' in any format with any member of executive management. Because we were never informed until the NBC story that there was an official policy of awarding 5 percent, we were unaware until this weekend of the legal issues surrounding admin leave," the GAA said in a written statement.

Rosen's policy could cause the county millions of dollars if other labor agreements are nullified regarding cost-saving cuts, Zarzana said by phone on Tuesday. Many county-employee contracts have a "Me Too" clause, which could open a Pandora's box for the county if other unions decide to throw out their concessions, he said.

Overall, the unions gave $75 million in concessions to the county, he said.

"We're talking potentially millions of dollars of givebacks to other employees," Zarzana said.

In his letter to employees, Rosen called the county and union agreement unfair.

Lower-paid deputy district attorneys took a pay cut of approximately 3 percent, while their supervisors took an 8 percent pay cut -- the 3 percent plus the 5 percent reduction, he said.

"The result of this unequal treatment was bitterness and divisiveness in the DA family. I believed then, and I believe now, that removing the 5 percent differential was fundamentally unfair. I then spent weeks working with the county to find a way to restore it. Those efforts were unsuccessful," he wrote in the letter.

 

The contract expressly included the district attorney's authority to grant administrative leave, he added.

"It is, and was well known, and has been thoroughly documented. In fact, as recently as last week, County Executive Jeff Smith told our chief assistant that such use of administrative leave is authorized. Other East Wing officials, including attorneys in the County Counsel's office, confirmed that we were authorized to grant administrative leave under the terms of county policies and the MOU," he said.

But Zarzana said while Rosen can grant administrative leave pursuant to the contract, "he does not have authority to violate the contract between Santa Clara County and the GAA, which suspended the lead-pay differential."

Zarzana said the GAA represents three groups of county lawyers: deputy district attorneys, deputy public defenders and child-support services lawyers, who all had the same 5 percent cut. But only Rosen's top 15 supervisors received the administrative leave arrangement, which left out other groups in the department, including criminalists and other investigators, he said.

"It seems pretty unfair that he focused on one small group of people," Zarzana said.

Platten said Rosen had opposed the pay cut during negotiations. On Monday, Platten blasted the district attorney for what he said was "probably a gift of public funds." The costs to taxpayers could be in the hundreds of thousands of dollars, he added.

"Mr. Rosen has made it real clear that he circumvented the memorandum of understanding by providing administrative leave to the supervising deputy district attorneys in an amount equal to 5 percent of full-time work hours for at least one full calendar year," he said.

Rosen may have violated civil and criminal law, Platten wrote in an April 7, opinion letter to union Zarzana following the NBC investigative report.

"This is an additional cost to the county and a financial benefit to the employee. It is clear that Rosen has approved a gift of public funds in violation of Government Code, Section 8314. (unlawful use or permitted use of public resources for personal or other purposes not authorized by law). He may have violated Penal Code Section 424 (illegal use or dispersion of public funds without authorization or knowingly keeping a false account.)

"Rosen spent public funds in the form of administrative leave for the private benefit of individual supervising deputy district attorneys," Platten wrote.

The union should inform its members that receipt of the administrative leave constitutes a gift of public funds, and it should recommend members immediately offer to re-credit the county for the administrative leave and cooperate with any investigation, Platten said in his letter.

Rosen maintains he instituted a transparent policy regarding the additional leave to recognize his supervisors for their additional duties, experience, and responsibilities.

He said the issue cropped up after a recent discovery that a supervisor's paycheck hadn't taken the 5 percent hit that it was supposed to, 1.5 years after the cut should have gone into effect. When the county notified the DA's office that the supervisor was receiving extra, the DA's office agreed that the employee was not entitled to it and that the employee is paying it back.

The administrative leave was also discussed at that time. In his letter Rosen said the county counsel confirmed:

"Administrative leave hours were properly granted ... as authorized by the Santa Clara County District Attorney's Policy and Procedure Manual ... These hours have been documented in our payroll system pursuant to a process approved by the district attorney with the assistance of County Labor Relations."

But the GAA wrote on Monday: "The GAA is unaware of a formal letter or message being sent to any district attorney members of GAA advising them of this policy. The district attorney's Policies and Procedures Manual (PPM) has never been updated to reflect Rosen's new policy. The county informed both GAA and Jay Boyarsky that the only valid policies are those which are in writing in the PPM or written agreements with the union."

County officials did not comment on Rosen's assertions.

Rosen said in a statement on Tuesday that he welcomes the Attorney General's review.

"I have the highest regard for the Attorney General. However, I told the County Executive that the Attorney General has endorsed my candidacy for reelection as district attorney and may not be the appropriate person to review this matter due to the potential conflict of interest," he said.

Comments

Alphonso
Los Altos Hills
on Apr 9, 2013 at 9:40 am
Alphonso, Los Altos Hills
on Apr 9, 2013 at 9:40 am

Obviously, the DA has extra money in his budget to cover this nonsense. So cut the budget!


Joe
Another Palo Alto neighborhood
on Apr 9, 2013 at 10:50 am
Joe, Another Palo Alto neighborhood
on Apr 9, 2013 at 10:50 am

> Rosen maintains he instituted a transparent policy
> regarding the additional leave to recognize his
> supervisors for their additional duties, experience,
> and responsibilities.

Doesn’t the County’s HR Department have the responsibility of determining the job description, and compensation levels, for all County employees—including the attorneys working for the County?

So—what “additional duties, experience and responsibilities” is DA Rosen talking about, that the HR Department would seem to be unaware?

Most of these County Attorneys are very well compensated. When their pensions are folded in to their total compensation package, they will be seeing roughly two dollars in retirement for every dollar they made when they were on the job. Why isn’t DA Rosen showing any understanding of the total compensation that these employees are eventually paid?

Given that the DA’s office is not very transparent, to begin with—it’s very difficult to understand what the public is getting for its money. Let’s hope that the public is offered a better choice for DA than a replay of this fellow’s questionable track record come the next election.


Hey, hey, hey
Professorville
on Apr 9, 2013 at 1:32 pm
Hey, hey, hey, Professorville
on Apr 9, 2013 at 1:32 pm

So they got a 5% pay cut, BFD!!! In 2001, my husband got a 30% pay cut, and gave his eloyees a 10% cut--and they were happy it was ONLY 10%. Eventually, their full pay was restored, but not until 2003.

In 2008, I was laid off and my husband took another 30% cut--but this time he had to lay off five people and cut the others' pay 10% again. The employees got their pay restored, one got her job restored, but my husband has not yet, after five years, restored his own pay....

So, these people in the DA's office, who largely make upwards of 200K/year, should not whine so much about 5% in pay cuts, especially since their boss coensated them on other ways. They should just man up like other people do in this roller coaster called Silicon Valley.


William Berry
another community
on Apr 21, 2013 at 5:37 am
William Berry, another community
on Apr 21, 2013 at 5:37 am

This article about DA Rosen dosen't surprise me. Give a man a certain degree of power and invariably he will supersede it. He is enjoying the fruits of his labor by going to law school yet he denies my daughter who put herself thru school to be come an architect, thru his refusal to drop an arrest warrant on her for protecting her young daughter 24 years ago, most likely condemns her to waiting tables. It will be interesting to watch himself wiggle himself out of this.


Carole B.
another community
on Aug 15, 2013 at 10:54 am
Carole B., another community
on Aug 15, 2013 at 10:54 am

D.A. Rosen should be held responsible for what he has done. He makes the rest of the County look bad. And as for Jeff Smith-he is in on it too I am sure. All the top exec's "steal" frm the Public/County funds and they will have to answer to God at some point if they make it to the right place. Good luck on this mess..


Parent
Charleston Gardens
on Aug 15, 2013 at 11:18 pm
Parent, Charleston Gardens
on Aug 15, 2013 at 11:18 pm

The California Attorney General? The same attorney general who took office to uphold and defend the laws of California? The same one that just filed a brief in court that Federal Environmental law should trump the state's California Environmental Quality Act? So that the California High Speed Rail Authority could shirk their responsibility to the citizens of the state to protect the environment by following CEQA. You mean THAT attorney general - that is so busy bending over backward for union and developer special interests that she too busy to defend the state? Don't hold your breath, I kinda think she won't return the call, unless there's a union special interest on the other side of the line.


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