DA spars with Supervisor Bruce Gibson

January 7, 2016

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.

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.