Santa Clara County Executive Jeff Smith is asking the Attorney General's office to address legal concerns surrounding District Attorney Jeff Rosen’s use of administrative leave to provide extra time off for his employees.
In an email sent by Smith Tuesday afternoon to Rosen, Smith writes he does not “have any other choice” but to refer the issue to the Attorney General saying, “If this situation had occurred with another department head, I would have asked you to get involved and do your own investigation,” he wrote. “Since I cannot do that in this situation, I plan to ask the Attorney General to address the accusations which would be within her jurisdiction if they were true.”
In response, Rosen issued a statement saying he welcomes a review by the Attorney General.
This comes in the wake of an NBC Bay Area investigation that exposed Rosen directed hundreds of time off requests be altered to reflect administrative leave, allowing employees to bank vacation days they could later cash out. Rosen told NBC Bay Area the extra time was to make up for a county mandated five percent bonus cut taken by lead attorneys.
NBC Bay Area reported Monday that the legal counsel for the union representing employees who received the free time off is calling the practice “a gift of public funds”
At the Board of Supervisors meeting this morning Smith said because these circumstances are unique, he prefers to refer the investigation to an external party but District 5 Supervisor Joe Simitian disagreed.
Simitian said the county’s internal legal counsel should first establish if the DA violated policy before initiating an outside investigation. Simitian said he will request that opinion from county counsel.
"I'd like to avoid the cost, the delay and frankly, having someone who is not familiar with the county organization," Simitian told NBC Bay Area. "Sort out the fundamental question which is: is it allowed or not?"
The other three supervisors supported an investigation by outside legal counsel.
“The first thing you ask your yourself is ‘Did I know about it? Were we put on notice about it? Were we informed? Was it something that came before this that we acted upon?” Supervisor Dave Cortese of District 3 told NBC Bay Area in an interview Tuesday. “And the answer to all of those questions in my mind was ‘no.’”
Cortese told the Investigative Unit he believes an outside investigation is necessary.
"I didn't know these payouts were happening," Cortese said. "If we don't have somebody independent come in and make a determination of what happened in a binding way, this could just become very messy."
In an interview with the Investigative Unit Monday afternoon, Smith alluded to his plans to get the Attorney General involved. “We really can’t do an internal investigation without certainly incurring a lot of criticism, no matter what the investigation shows,” Smith said. “Probably the referral to the Attorney General’s office is the most appropriate.”
Monday, the County Executive’s office issued a memo capping the use of administrative leave in the DA’s office to forty hours per employee per fiscal year.
NBC Bay Area found lead attorneys in the District Attorney’s office received 2,214 hours of administrative leave in 2012. Compare that to 2011, when the same group received a quarter of that - 538 hours.
According to county policy, administrative leave is to be given at the department head's discretion to employees who have worked "an extraordinary number of hours" and according to the union contract, in “increments usually less than one day”.
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