District attorney denied request to pay outside counsel 

Outside counsel sought on issue regarding paid time off

District Attorney Dan Dow

–At their Jan. 5 meeting, The San Luis Obispo County Board of Supervisors denied District Attorney Dan Dow a request to pay a $2,874.65 bill for legal services rendered by the law firm Jones & Mayer.

Dow consulted with the outside firm after an anonymous party made a whistleblower complaint to Auditor-Controller Jim Erb in March that claimed the deputy district attorneys were receiving extra paid off time for hours spent on call. At it’s April 7 meeting, the board directed Dow to discontinue the practice. Erb also sent Dow a memo on April 8, saying that the practice was unauthorized and must be discontinued.

“We investigated this complaint by interviewing department staff and reviewing payroll records for calendar year 2014 and calendar year 2015, said Erb in the memo. “Our investigation led to the conclusion that the practice of unsanctioned compensatory time off (CTO) was offered to the Deputy District Attorney’s (DDA),” . “My responsibility as auditor-controller is not only to stop the unsanctioned practice but to also ensure county assets are protected and employee time is reported accurately and within the guidelines of legal practice…This is an unfortunate situation as I do believe many of the DDAs assumed the CTO was a sanctioned practice. However, we have had other situations when an employee or citizen received compensation they were not entitled to through no fault of their own. Regardless of the reason, we always correct the timecard or other process to right the error without assigning any blame.”

Later in April, Dow contacted Chief County Counsel Rita Neal seeking advice as to how to proceed. Dow said there was a, “conflict-of-interest that prevented the Office of County Counsel from providing conflict-free legal advice to the district attorney while simultaneously providing legal advice to other county departments and the board of supervisors on this same important matter,” according to a press release. Dow then hired the Fullerton-based law firm Jones & Mayer to seek advice on the issue.

Dow’s outside counsel determined that, “You have the authority as a department head, pursuant to County Code § 2.44.110, to arrange individual employee’s workdays or workweeks so as to provide for the proper function of your department at such hours and times as may be deemed necessary…As the described on-call procedure, including the provision of offsetting time off, did not alter the fixed compensation of the concerned DDAs, it can fairly be seen as an adjustment or rearrangement of workdays and workweeks as set forth in § 2.44.110.”

Seeking outside counsel, however, requires approval from the board, which Dow did not receive. Erb asked the board to approve the payment, reportedly saying that he believed Dow didn’t realize he needed their authorization. The request to reimburse the attorney fees was denied 4-1, with Supervisor Debbie Arnold being the only dissenter.

“While I am very disappointed that the board chose not to close this matter today by approving this modest payment from the district attorney’s already approved, budgeted, and available funds, I respect their decision. I will now consider what options lay ahead including whether the decision may be reviewed by the Superior Court,” said Dow following the board’s vote.