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.


Loading...
Dave

Dan Dow will be interviewed on KVEC 920 AM at 5:05 p.m. on Wednesday, January 13th. Tune in! Call in! Listen online at 920kvec.com.


Citizen

Every time Adam Hill acts out and gets caught, then the Hateful Three (Adam Hill, Bruce Gibson, Tom Fulks) launch attacks against all the Conservatives in office. Dan Dow, Debbie Arnold, Lynn Compton, COLAB are the primary targets this time. Just read Fulks’ opinion pieces in the Tribune, and currently in the New Times while Adam Hill proceeds to try to silence the media (Cal Coast News, Dave Congalton, and Dick Mason) when they report on his bad behavior.


Perspicacious

Except for Lynn Compton wasn’t a target this time, she went along with Gibson in his scheme to attack Dow. Arnold was the lone voice of reason.


marcusaurelius

Dan Dow lied on public radio yesterday. He did not pay the legal bill with his own money as Dan claims.


joseywales

everyone does realize that Dan Dow is a parasite living off the public expense because he wasnt good enough to get into a top Law Firm or Corporation?


Why do we revere him for being 100th out of a class of 110. the remaining ten work for him.


Citizen

Not good enough to get into a top Law Firm or Corporation? That applies to every attorney in this county as we have no top Law Firms or Corporations here.


marcusaurelius

we dont have any law schools here either genius. Did you know Dan Dow lied yesterday on radio about paying that legal bill himself? The evidence will be displayed in a cal coast news exclusive article.


trebor86

I thought Dow was a military attorney. No?


CentralcoastRN

DA’s 2015-2017 Union contract


http://www.slocounty.ca.gov/Assets/PE/Labor+Relations/MOUs/BU06/DAIA+(BU06)+MOU+2015+-+2017.pdf


Their 2013-2015 Contract


http://www.slocounty.ca.gov/Assets/PE/Labor+Relations/MOUs/BU04/SLOGAU+MOU+2013-2015.pdf.pdf


I believe if I am reading correctly, the employees mentioned in the DA Union are considered 40 hour employees. If there is an “emergency”, it looks to be deemed one by the County, not the District Attorney’s office themselves.


I am NOT saying Dan Dow or anyone in his office is not hard working or undeserving of on call pay. I am just saying you cannot “decide” to pay yourself if it isn’t in your contract. There are employees who are just as educated if not MORE educated and hard working as the employees of the DA’s office who did NOT get COLAs or wage studies and raises that the DA’s office got; my guess is that the County and Board of Supervisors says they don’t have the money.


joseywales

have you ever worked for a company where profit is mandatory? you are laughable.


CentralcoastRN

I think you are “special” too.


DanA

You compared two different bargaining units. BU06 are the DA investigators, peace officers with a 40 hour work week. BU04 are the DA attorneys, salaried lawyers.


CentralcoastRN

Oops. You are right. The link below is easier to navigate. It has all County bargaining units listed, so anyone who wants to see and compare can.


I find the difference in wording interesting.


I’m all for people getting the pay they earn. It would just be so simple if it was easy to find in the MOU. That’s all.


http://www.slocounty.ca.gov/hr/Employee_and_Labor_Relations/Labor_Relations/MOU2.htm


jana

Hmmm.. what a bunch of little hypocrites.

I know that a number of elected officials including the auditor, have allowed clerical staff to go home early, such as on Christmas Eve. Is Mr. Erb going to investigate himself?


Gordo

First let me begin by saying that I am NOT a fan of Dan Dow. However as the district attorney he is an elected autonomous official of this county who has every right to solicit an outside opinion from legal counsel relating to any matter concerning his office.

That Mr. Erb or any member of the Board of Supervisors would attempt to interject themselves in the running of any of the Constitutionally created offices in this county is absurd.

The three most powerful officials in San Luis Obispo County are the sheriff, the district attorney and the tax assessor, because their offices are created the the Constituition of California. In fact their offices predate the establishment of the County Board of Supervisors in San Luis Obispo County. The Board and Mr. Erb would do well to steer clear of those three officials and allow them to run their departments as as they see fit.

It is the voters who will decide whether the occupants of those offices are worthy of reelection to, not Mr. Erb or any member of the Board of Supervisors.

Furthermore the practice that is at the heart of this entire matter was one of the district attorney allowing time off for extra hours worked by salaried attorneys in his office. Those extra hours that were worked more often than not were involving after-hours calls from police officers who were attempting to get search warrants late at night or by detectives who called an attorney from the DA’s office to the scene of a murder so that the DA could be involved in the murder investigation and the eventual prosecution of a suspect from the very beginning.

This is a sound practice and is important for the pursuit of justice. It is also a practice that is at the discretion of the elected official that is running the district attorney’s office, not the Board of Supervisors.

With all due respect Bruce and Jim should just butt the fuck out!


CentralcoastRN

The issue is how the issue of overtime is addressed in their Union Contract. Are they supposed to flex their time? Are they given Compensation time, as other employees are, in lieu of pay? Are they allowed to take overtime, and IF so, how much overtime is allowed, who approves over time, etc??


While I value public safety, this does not give City, County, State workers a blank slate to have endless overtime. That money means budget cuts elsewhere…..


Those would be my questions if I didn’t adequately make that clear before.


CentralcoastRN

The District Attorney’s that are County Employees are represented by a branch of a Union. Therefore, they have a union contract. If they want “on call” pay, it MUST be written into the by laws of the contract or it is ILLEGAL and improper for them to be working outside of the terms of the contract.


The District Attorney’s, attorneys that work for the office all work for a salary/set pay with benefits. While they are probably and should be able to set and “flex” their hours based on their workload as to maintain a 40 hour work week, any hours above 40 MUST be approved by supervision, as the upper management is given a BUDGET annually by which they must pay staff, maintain their department.


Just because they were doing this illegally doesn’t mean it was right. Someone probably got sick of watching the abuse and took advantage of the “whistleblower” tip line initiated within the last 5 ish years.


The County employs several thousand employees. Many of very hard working. And MANY have not had more than a 40 cent raise since 2008. Remember that $1000 “bonus”? It was no bonus. County employees, and I’m not even sure it was ALL county employees because all county employees do NOT bargain under the same unions, have had HUGE increases in their health insurance costs in the last few years. Some members of the County were aware that the economy was in the toilet. They knew they had to do their part. They agreed to not take raises, and when the economy turned around, they believed the County and BOS would use their common sense and decency to in turn give COLAs and raises that were reasonable and without a fight. Oh no. Rather than give a COLA or a raise, the Board of Supervisors approved a $1000 pay out never done before to anger the public in to not supporting employees.


Why does that matter? Because The District Attorney and Law Enforcement are two separate bargaining units who seem to keep taking and taking regardless of the State of the economy. They make the social workers, the nurses, the people that help our seniors, the children, our homeless pay the price.


Not all County workers are lazy, corrupt, and money grubbing. I say that the answer to this Attorney’s debate lies within the terms of the Union CONTRACT they write with the County every 2 years. If it isn’t there, too freaking bad. Write it in next time. You cannot just write your own rules as a PUBLIC SERVANT!!!!


Ishmael09p

You are all relatively smart people who can, if pressed, look carefully at the menu before you and make certain analytical predictions about the food that will soon be plated and placed before you.


Bearing that in mind, Dan Dow is not a sneak. He can afford to fight the fights he chooses, even those that skirt conjectural impropriety, because he does nothing that can be proved improper.

If he hired a law firm, it is coincidental that he knows the lawyers who work there. He will have most assuredly assessed the situation for impropriety and had he found any would have hired someone else.

If he is going to bat to maintain this practice of compensating on-call hours for his subordinates, he not only believes it fair, but also believes he has a shot a winning. In the absence of these conditions, he would have not moved forward.


There is a reason nobody has any accusation or indictment to offer against Mr. Dow: he is a man of honor and integrity, and he is dedicated to remaining such.


Any moron can see in his manner and affect that he does not parse words for half meanings or technical truth, but speaks whole truth or reserves comment.


Bash yourselves against the rocks if you want to, but NOBODY is going to believe this guy is crooked or prone to partisan dirty tricks. If you have any doubts about him, simply make a list of his enemies then ask yourself: who is the Galahad and who is the dragon?