DA spars with Supervisor Bruce Gibson

January 7, 2016
District Attorney Dan Dow

District Attorney Dan Dow

By JOSH FRIEDMAN

A dispute over a small legal bill morphed into a public spectacle Tuesday as a months-long feud between San Luis Obispo County District Attorney Dan Dow and several top county officials reignited at a board of supervisors meeting.

During the meeting, Supervisor Bruce Gibson took shots at the district attorney’s character, while Dow refused to concede he was in the wrong. Gibson also persuaded the board majority to go against usual practice and to reveal what was said in closed session discussions between Dow and the supervisors.

The hearing concluded with no resolution to the outstanding $2,874 legal bill. Dow responded with a statement saying he is considering taking the board of supervisors to court over the issue.

Dating back at least to last April, Dow has clashed with Gibson, County Counsel Rita Neal and other top county officials over multiple issues relating to employee pay.

The primary point of contention has been the more than 30-year practice of deputy district attorneys receiving paid time off in exchange for on-call work in which they make themselves available around the clock to help law enforcement officers with search warrants. Several county officials, including Neal, say the compensation arrangement violates state law.

Many observers suspect political leanings are at the heart of the feud. Dow, a Republican, has aligned himself with rivals of Gibson, a Democrat. Recently, Dow endorsed the reelection campaign of Supervisor Debbie Arnold, as well as the campaign of John Peschong, a Republican strategist who is vying to replace retiring Supervisor Frank Mecham.

Dow won the district attorney’s race in June 2014, defeating then-assistant DA Tim Covello, whom many leading Democrats in the county endorsed. A large factor in Dow’s successful campaign was the support he garnered from nearly all of the county’s deputy district attorneys.

On Tuesday, Gibson accused Dow of attempting to satisfy the interests of deputy district attorneys while demonstrating an unethical response to a whistleblower complaint.

Last March, county auditor Jim Erb launched an investigation into the pay issue after receiving a whistleblower complaint about the matter. Erb and Neal then concluded the compensation was illegal because the paid time off was not approved by the board of supervisors nor included in a written labor agreement, as required by state law.

In April, the board of supervisors met with Dow in closed session and ordered him to put a halt to the paid time off practice. Dow then discontinued the practice.

But, when Erb said he was considering recouping some of the pay from current deputy district attorneys who had been promised the compensation upon their hiring, Dow sought another legal opinion on the matter, Dow said.

Supervisor Bruce Gibson

Supervisor Bruce Gibson

Dow obtained an opinion from Fullerton law firm Jones & Mayer, which stated the “quid pro quo” of providing paid time off in exchange for on-call duty is legal. The law firm cited county code, which allows the district attorney to arrange employees workdays and workweeks.

Jones & Mayer represents numerous government agencies in California. Dow said he planned to pay the firm for the legal advice using funds in the district attorney’s office budget.

Erb would not approve the payment, though. Erb said Dow must obtain approval from the board of supervisors before making the payment.

On Tuesday, Erb requested the board approve the payment of the legal bill. But, the board voted 4-1, with Arnold dissenting, not to approve the payment.

Before the vote, supervisors and county officials argued the issue for about an hour. Gibson interrogated Dow as to why he would seek another legal opinion after agreeing in closed session to end the paid time off practice.

The supervisors also voted 4-1, with Arnold dissenting, to waive the confidentiality of its closed session discussion.

Dow argued he has the authority to seek outside legal help. He cited a California attorney general opinion, as well as the county’s purchasing policy that allows department heads to seek outside professional services up to $2,500. Legal assistance is one of the services listed in the county policy.

Additionally, Dow argued he could seek outside legal help because Neal, the county attorney tasked with advising him, had a conflict of interest on the matter.

A July email exchange between Dow and Neal shows Neal acknowledges the district attorney can obtain another legal opinion if the county counsel has a conflict of interest. Neal said she had no conflict of interest, though.

In response, Dow wrote that from the beginning of the dispute, Neal had been providing more information and legal analysis to Erb and other county officials than she had been providing to the DA’s office.

“It has not been clear from the beginning whether you have been representing the interests of my department,” Dow wrote in a July 21 memo to Neal.

Unlike Dow and Erb, Neal does not hold an elected office. Neal was appointed county counsel by the board of supervisors.

The county counsel’s office and the district attorney’s office were also pitted against one another in separate pay dispute that arose shortly following the whistleblower complaint.

At an April board of supervisors meeting, Dow spoke during public comment and criticized a human resources department recommendation to begin paying county counsel’s office attorneys more than deputy DAs. Since the two departments had been separated about 40 years ago, the two groups of attorneys had essentially been paid the same amounts, Dow said.

Dow also said the county used poor data comparisons as the basis for the pay recommendations. The county counsel comparisons included the salary of the executive vice chancellor and general counsel of the California State University system while the district attorney comparisons did not.

The deputy district attorneys’ union is currently in labor negotiations with the county. Salary increases and paid time off are both elements of the negotiation.


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Perspicacious

The truth will vindicate Dow, the most ethical and honorable DA this county has ever had. the fact that he is bucking the BOS and will not be bullied by them is a definite PLUS for him. All of you ripping Dow would not be doing so if your opinions were based on facts.


mkaney

Yeah you always say that but you don’t present any. Why is that? Maybe because you are a public safety employee with a huge bias. You don’t think anything that public safety-related employees should be criticized by the people footing the bill. Well get used to it, because things are just warming up.


abigchocoholic

The hearing concluded with no resolution to the outstanding $2,874 legal bill

———————

What the? These guys waste more than that at every meeting. The opinion Dow got from his lawyers probably cost 10k.


This is the epitome of modern beauracracy. Spend 100k fighting over 2k.


Pelican1

The time has come to take the bull by the balls and cut out the pork, waste, fraud, and abuse that has been foisted upon the middle class for decades.

The government gravy train is over-booked and will not leave the station until it employees UNDERSTAND accountability…NO MORE FREE RIDES.


SLOBIRD

So, if there are 30 DA piece one to have a Sat/Sunday schedule and then do what the City of SLO does with their management/Special employees, give then 5 adminisstrative each during the year for their overtime. You are all smart lawyers. figure sometime out without costing the taxpaters.


There is not one of you posting here that would go in to work on a weekend or middle of the night and not expect compensation so stop whining.


Kaiser Bill

“There is not one of you posting here that would go in to work on a weekend or middle of the night and not expect compensation so stop whining.”


Most contracts provide a minmum rate and hours paid for a call out. That would be far better than the current system of comp time, which could obviously be abused. That is likely why former Assistant DA Tim Covello said many DA’s weren’t working a full 40 hour week. Surprise, surprise, the deputy DA’s lined up behind the softie Dow who doesn’t want to make them work.


joseywales

lol. for salaried professionals it is a way of life. everyone except in the public sector.


racket

I don’t understand the first paragraph. I agree with the second.


Pelican1

Here;s the deal..we have two county officials sparring over who deserves to abuse the tax dollars the most…the guy who hires his mistress or the guy who wants overtime pay for essentially just doing his job,.

This is nuts! It reeks of corruption on a level we should refuse to accept.


Jorge Estrada

Dan Dow has the tools of law on his side and he will take down the political house of cards, the cause of this public grief. Pointing a finger rarely happens without three fingers pointing back.


mindy

It is amazing to me that with over 30 attorneys, they have to pay one of them to be “on call.” When I worked there, I was one of only 3 people who typed up the search warrants. Did we get “on call” pay? No. I remember being called in on a weekend when I had the flu to do a search warrant. Best part is that I didn’t even get paid over time for the Saturday, because I had been out sick. This “on call” pay is a joke and it should not be allowed.


kayaknut

but went in the public sector and you can funnel some extra taxpayer money to a buddy of yours just because, why not, it’s not like it’s real money.


Perspicacious

People that would work for free, and being on call is working, are morons. All of you stone throwers are hypocrites.


marcusaurelius

what tools are those? the gestapo?


racket

When you say “the tool of the law,” are you referring to Ian Parkinson?


justbeware

Bwaaaaaahahahaha!


achillesheal

“Supervisor Bruce Gibson took shots at the district attorney’s character”… Hey Bruce, don’t forget that you live in a glass house. Does affair with a married subordinate ring a bell?


SLOBIRD

How darn this slim bag question anyone’s character after cheating on his wife for how long Bruce? And then not only cheating, but having the County taxpayers pay for your piece of fluff that was hired by you to be your assistant and using taxpayers $$$ to delight yourself during her work day. You are a real piece of $h@t!


surferdude

Once again this scuffle is all about MONEY that public employees make.


When will they be grateful for the pensions, benefits and holidays they get?


#sosickofoverpaidpublicemployeeswhining


achillesheal

Great point surfer dude, and I’m sure you know that the answer is never. They don’t have a stake in generating the dollars that are paid so it’s all monopoly money.


Bert

FIAT isn’t just a car company.


SLO_Johnny

A tempest in a tea pot. The argument costs more than the bill. This is ALL POLITICS. No one on either side is looking out for the taxpayers. The supervisors are playing petty politics and sending us the bill. In the meantime, they are attending to other important issues that need to be addressed.