Cross-outs and rewrites cover hundreds of time off requests from the Santa Clara County District Attorney’s Office over the past two years. The reason for the changes: To give free paid time off to a select group of employees. The practice allows them to bank their allotted vacation days, which they could later cash out.
Santa Clara County District Attorney Jeff Rosen told the Investigative Unit he directed his office to recode requested time off to “administrative leave” to make up for a county-mandated pay cut which he called “unfair” and “wrong.”
“It’s a problem in terms of savings to the county,” County Executive Jeff Smith who oversees county policies and union contracts told NBC Bay Area. Smith has called for an internal investigation into the DA's use of administrative leave.
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.
At the same time, use of vacation hours was cut in half: In 2011, the lead prosecutors used 2,492 hours of vacation time, but in 2012 they only used 1,284.5 hours.
NBC Bay Area’s Investigative Unit first exposed Rosen’s free time off policy on Saturday. To read the first report, click here.
The employees benefiting are the 15 lead prosecutors, the attorneys holding leadership roles.
In September 2011, in an effort to save money, the Board of Supervisors approved a new contract between the county and the Government Attorneys Association, the union representing all county lawyers, which cut a 5 percent bonus normally given to lead attorneys.
In reaction to the cut, Rosen told NBC Bay Area he asked his Chief Deputy District Attorney, Jay Boyarsky, to change vacation requests to “administrative leave” for lead prosecutors, giving them extra time off without using vacation time.
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”.
NBC Bay Area found the lead attorneys are some of the highest paid employees in the county, each bringing home six figure salaries.
The highest paid lead prosecutor earned $278,310 in 2011 and was granted the most administrative leave last year: 212 hours.
Another lead deputy district attorney earned $268,775 in 2011. Documents show he took 188 vacation hours that year and 10 hours of administrative leave, but after Rosen instituted his time-off policy, that flip-flopped: In 2012, the lead prosecutor used 177 hours of administrative leave and only one hour of vacation.
Some of the time sheets changed from vacation to administrative leave:
The Investigative Unit uncovered lead attorneys in the Office of the Public Defender and Department of Child Support Services, also affected by the 5-percent cut, did not receive any administrative leave.
NBC Bay Area asked Rosen how his policy is fair to others who made cuts. “I am trying to give them something to reflect the fact they aren’t getting this five percent differential," he responded. "What is really unfair and unprecedented is to ask somebody to have extra responsibilities, extra work and extra stress and not pay them any more money to do that.”
“I’m the elected DA, so I’m entrusted with the public, with running the DA’s office and protecting the public,” he said. “I’m not here to speak about how other departments in the county run their affairs.”
Rosen justified the administrative time, saying employees are available 24/7, accessible by Blackberry even when on vacation. “All of the lead prosecutors carry a Blackberry,” Rosen said. “This isn’t a perk; this is a tool that fights crime.”
It’s not just vacation the DA directed to be changed to administrative leave: the Investigative Unit also found sick time re-coded.
NBC Bay Area asked Rosen if changing sick time to administrative leave is permissible. “First of all it’s the same thing,” Rosen said, “whether they are here or not, and they have time off, whether it comes from their sick bank, or vacation or administrative leave, it’s all time away.”
However, vacation days are a form of compensation in Santa Clara County and can be cashed out upon retiring or leaving on good terms, according to the attorneys' union contract.
One lead attorney retired in December, 2012. The Investigative Unit found she cashed out 1,141 hours for a payout of $107,187. Documents show she was given 247 hours of administrative leave during 2011-2012.
“What it does change is the accruals in the vacation bank which can be cashed out at a later time, so it does change total compensation,” County Executive Jeff Smith pointed out in an interview with NBC Bay Area.
Smith told the Investigative Unit he was “shocked” by the amount of administrative leave time given out, but his main concern lies in the future impact on the county budget if other departments replicate Rosen’s time off policy.
“If every department did this, the budget would be totally out of control,” Smith said. “It’s a fine line between the independent elected department head’s discretion and the effect it has on the employment of county employees.”
In reaction to what this investigation found, Smith has asked county counsel, employee services and the auditor to investigate the time off taken in the DA’s office to determine if policies were followed and what action should be taken. The Board of Supervisors has also been notified.
Rosen told NBC Bay Area, his policy does not affect compensation.
“They are salaried, they don’t receive overtime, don’t receive stock options, they don’t receive bonuses, they don’t even receive coffee. We don’t have free coffee here,” Rosen told the Investigative Unit. “It’s not extra money they are getting, this is a little extra time they are getting.”
“They aren’t getting a dime more than anyone they are supervising and it’s not costing the taxpayers more,” he said. “It’s a good deal for the taxpayers.”
Former counsel to the Fair Political Practices Commission, Bob Stern, disagrees.
“I don’t think it’s fair to the county taxpayers,” Stern said. “What he did was go around what the county board did and find a different way to achieve what he wanted to achieve which was to pay his employees less but also let them work less.”
Stern said he can’t comment on whether or not Rosen’s time-off policy violates county rules, but foresees more investigations into the appropriateness of this use of administrative leave.
“It may be legal, but in my mind it’s probably unethical,” Stern said.
Rosen referred NBC Bay Area to a seal on his wall that lists the core values of his office: service, hard work, integrity and transparency.
“This is making clear and transparent to the public what we are doing which is giving administrative leave in lieu of scheduled time off,” he said. “I think this is the right thing to do and that’s why I am doing it.”
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