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									                                      MEMORANDUM


TO:              Jeff Rosen, District Attorney
                 Jay Boyarsky, Chief Assistant District Attorney

FROM:            Stephen Lowney, Supervising Deputy District Attorney

DATE:            June 13, 2013

RE:         Paid Time Off Analysis
_______________________________________________________________________
                             INTRODUCTION

        This memorandum addresses some of the legal and factual issues concerning the
recent directives from County Executive Jeff Smith and Deputy County Executive Luke
Leung which unilaterally altered and/or terminated the long-standing practice of
providing paid time off to prosecutors who have worked hours beyond the normal
workweek.1
                                          BACKGROUND

        Historically, the Santa Clara County District Attorney’s Office (Office) has
provided paid time off to prosecutors who have performed certain office duties or
requirements after normal business hours (paid time off). Specifically, the Office has
provided paid time off to new attorneys to compensate them for time spent after normal
work hours participating in a ride-along program with local law enforcement agencies.2
Similarly, since at least the mid-1980s, the Office has provided paid time off to
prosecutors who perform search warrant and on-call homicide duty after normal work
hours. Paid time off for these purposes was labeled “comp time.” Also, since at least
2008 and at the recommendation of Deputy County Executive Luke Leung, the Office has
provided paid time off to prosecutors who have worked hours beyond normal work hours.
Paid time off for this purpose was colloquially-termed “administrative leave.” 3

1
  See attached letter from Deputy County Executive Luke Leung to District Attorney Jeff Rosen dated
4/8/13 and email from County Executive Jeff Smith to District Attorney Jeff Rosen dated 4/24/13.
2
  According to DDA Bob Meyer, in 1977 he received hour for hour comp time to compensate him for ride-
a-longs he participated in after normal business hours. Since at least 1976, new attorneys have been
required to participate in 40 hours of ride-a-long time.
3
  In 2008 then Chief Assistant Marc Buller met with Luke Leung and discussed the different types of paid
time off in the District Attorney’s Office including ride-along, search warrant and on-call homicide duty
There is no legal distinction between so-called “Administrative Leave,” “Comp Time,” or
“Paid Time-Off.” All stand for the same thing: a form of compensation that is authorized
under the Fair Labor Standards Act of 1938 (FLSA).
        While these paid time off programs operated without any formalized agreement
between the prosecutors and the County until 2011, formalized tracking and accounting
procedures have been in place between prosecutors and the Office for decades as noted
above. On September 5, 2011, for the first time, paid time off became part of the
Memorandum of Understanding (MOU) negotiated between the Government Attorneys
Association (GAA) and the County. The parties labeled paid time off – “administrative
leave.”4
        On April 8, 2013, District Attorney Jeff Rosen received a memorandum from Luke
Leung which purported to unilaterally alter the conditions under which administrative
leave could be granted as agreed upon in the MOU. The memorandum stated, in part,
“Effective immediately and going forward through the end of the GAA memorandum of
agreement that is set to expire September 1, 2013, administrative leave granted to
employees represented by the Government Attorneys Association shall not exceed 40
hours in a fiscal year.”
        On April 24, 2013, District Attorney Jeff Rosen received an email from Santa
Clara County Executive Jeff Smith which purported to unilaterally terminate the long-
standing practice of providing paid time off to prosecutors who after normal business

comp time. Mr. Leung stated that he preferred that all these programs be accounted for as “administrative
leave.” After this meeting Attorney Time Off sheets were modified to include ride-a-long, search warrant,
on-call homicide duty and administrative leave. Also, the District Attorneys Office started to report
administrative leave hours to payroll to be tracked and reported on paychecks.
4
  The paid time off provision in the 2011 MOU reads: 15.4 Administrative Leave GAA represented
employees are designated by the County as “exempt” employees under the Fair Labor Standards Act
(FLSA). GAA employees are salaried employees who are expected to work the number of hours necessary
to fulfill the duties of the position without overtime pay. Depending on the circumstances, GAA employees
may work more or less than forty hours in any particular week. Recognizing the above, GAA employees
may be granted time off without charge to any leave bank under “administrative leave” if the manager
determines that the service delivery and performance of job functions will not be impaired because of the
absences from work. Such time off should not be calculated on an hour-for-hour basis in relation to excess
hours worked. Administrative time off must be: Scheduled in advance when possible; Approved as
administrative leave by the manager, and Normally taken in increments of less than one day.
An employee need not state a reason for requesting the time off. Either it is or it is not appropriate to
grant the time off under the circumstances outlined above. An employee can make the request and use
the administrative time off for any purpose without the necessity to state a reason.
For a full day’s absence under “administrative leave” an executive manager’s approval is required.
Approved requests should be maintained for periodic audit by the Internal Audit Division. While
discretionary for less than a full day’s absence, full day increments of administrative leave must be
reported in the payroll system.


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“compensation…of county employees.” As such, the County alone has the authority to
implement or authorize all paid time off programs for county employees. Conversely, the
County has the authority terminate programs operated without the express authorization of
the County (See County of Kern v. Sparks (2007), 149 Cal.App.4th 11, 56 Cal.Rptr.3d
551.)
     In Kern,, a former Sheriff, Sparks, granted premium pay to his commanders. (Id. at
p. 14.)     However, the County Board of Supervisors only authorized premium pay for
deputies, senior deputies and sergeants under an MOU. The MOU did not cover
commanders. (Id. at p. 16.)
   Sparks argued that he had independent authority to grant the premium payments. (Id.
at p. 18.). The appellate court summarized Sparks position as follows:

        In support of his belief that he had the authority to do so, Sparks relied on
        group lectures given by the attorney for the California State Sheriff's
        Association regarding the discretion a sheriff has with respect to the money
        allocated to the department.

        Spark's position was also based on his reading of a 1994 California Attorney
        General's opinion. That opinion concerned “whether a county board of
        supervisors may govern the actions of a sheriff or district attorney with
        respect to the manner in which budget allotments for those offices are
        expended,       including       issues     of     personnel     deployment.”
        (77 Ops.Cal.Atty.Gen. 82 ( 1994), fns. omitted.) The opinion concluded that a
        board's specific responsibility to “ ‘ provide for the number, compensation,
        tenure, appointment and conditions of employment of county employees' [
        citation] is simply an inherent aspect of the preparation and adoption of
        the county's budget ...” and “does not encompass the management of
        budgetary resource allotments....” (Id. at pp. 88– 89.) “Consequently, a
        board's authority to provide ‘conditions of employment’ cannot be
        interpreted to confer ongoing control over the actions to be taken by
        personnel previously assigned to the sheriff or district attorney.” (Id. at p.
        89. Emphasis in original. )

   The Kern court summarily dismissed the impact of the Attorney General’s
opinion stating, “Nevertheless, the opinion does not suggest that a sheriff can spend
budgeted funds for an unauthorized purpose.” (Id.)
   Instead, the appellate court deferred to the County’s power to prescribe
compensation for County employees, stating, “Under the California Constitution, the
governing body of each county provides for the compensation of its employees.
(County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 285, 132 Cal.Rptr.2d

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713, 66 P.3d 718.) Thus, here, it was up to the Board, not Sparks, to set the salary
for a commander.” (Id.)
   The present case is similar. Here, it is up to County, not the District Attorney to
set the terms of compensation for county employees which include whether or not to
provide paid time off. It is true that paid time off does not involve an initial outlay
of County funds, however the use of paid time off allows employees to choose to
use less vacation time (STO). At the time of an employee’s separation from
employment with the County they are entitled to cash out any remaining STO
balance at their current hourly rate. Consequently, by providing employees paid
time off and thereby potentially increasing their STO banks, the District Attorney
has increased the potential STO cash out liability to the County. This increase in
liability was never authorized by the County. As such, the County has the power
and obligation to terminate the District Attorney’s paid time off program.


Case For The District Attorney
       A county board of supervisors is not authorized to govern the actions of the
District Attorney concerning the manner in which the District Attorney budget allotment
is expended or the manner in which personnel are assigned. (77 Ops. Cal. Atty. Gen. 82,
1994 WL 162946, citing Newell & Williams v. El Dorado County (1856) 1 Labatt 102.
[County had no authority to retain the services of a private law firm to prosecute certain
parties accused of murder.]; County of Modoc v. Spencer (1894) 103 Cal. 498, 501
[County had no authority to employ outside counsel on behalf of the county to assist the
district attorney in the prosecution of criminal cases].) Moreover, “the board of
supervisors has no power to control the district attorney in the performance of his
investigative and prosecutorial functions…” (Hicks v. Board of Supervisors (1977) 69
Cal.App.3d 228, 241 [[County did not have authority to order the transfer of 22
investigative positions from the district attorney’s staff to the sheriff coroner.]) Here, at
least four elected District Attorneys over a decades-long span have chosen to expend part
of their budget allotment to provide paid time off to prosecutors who are performing
essential investigative and prosecutorial functions after normal work hours.
Consequently, the County has no authority to direct the District Attorney to cease granting
paid time off to these prosecutors who work extra hours performing ride-a-longs, search
warrant duty and on-call homicide duty.
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     In its 1994 opinion the Attorney General elaborated on the respective powers of the
board of supervisors and district attorneys, stating:


In sum, the distinction to be drawn is between the power of a board of supervisors to
appropriate county funds and the power of a sheriff or district attorney to manage the
expenditure of the funds so appropriated. The grant of authority given to a board of
supervisors by the Legislature is unaffected by allowing the sheriff and district attorney to
perform their constitutional and statutory duties. A board's specific responsibility to
“provide for the number, compensation, tenure, appointment and conditions of
employment of county employees” (Gov. Code s 25300.) is simply an inherent aspect of
the preparation and adoption of the county's budget, which in turn is an indispensable
prerequisite to a valid tax levy, a clearly legislative function. (Ryan v. Byram (1935) 4
Cal.2d 596, 602; Hicks, supra, 69 Cal.App.3d at 235; However, the budget process is
integral and complete upon adoption of the budget; it does not encompass the
management of budgetary resource allotments the responsibility for which is conferred by
the Constitution or laws upon other county officers either expressly or by necessary
implication. (Beck, supra, 204 Cal.App.3d at 800- 801; Butte, supra, 176 Cal.App.3d at
698-700; Hicks, supra, 69 Cal.App.3d at 242-244; cf. State Board of Education v. Levit
(1959) 52 Cal.App.2d 441, 461-462.) Consequently, a board's authority to provide
“conditions of employment” (s 25300) cannot be interpreted to confer ongoing control
over the actions to be taken by personnel previously assigned to the sheriff or district
attorney. Accordingly, it is concluded that a county board of supervisors is not
authorized to govern the actions of a sheriff or district attorney concerning the
manner in which their respective budget allotments are expended or the manner in
which personnel are assigned.

(77 Ops. Cal. Atty. Gen. 82, 1994 WL 162946 Cal.A.G. [Emphasis added].)
Consequently, it is the District Attorney, not the County who has decision-making
authority over the District Attorney’s budget allotments.

County of Kern v. Sparks Is Distinguishable

       The holding in County of Kern v. Sparks does not apply to the present
situation. As stated above, the appellate court in County of Kern, supra, 149
Cal.App.4th 11, considered the Attorney General’s Opinion when it held that a
sheriff did not have independent authority to grant premium payments to his
commanders. The appellate court stated, “Nevertheless, the opinion does not
suggest that a sheriff can spend budgeted funds for an unauthorized purpose.” (Id. at
p. 16.) However, unlike the present situation, County of Kern involved the payment
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of funds to employees in clear violation of a negotiated memorandum of
understanding and without any authority (Id. at pp 16-17.) Moreover, the payments
were not essential to the investigative function of the sheriff’s office.
       Here, prosecutors are not paid for extra hours worked. Instead, paid time off
is provided to prosecutors to allow them to perform essential investigative and
prosecutorial functions. Moreover, providing paid time off in this manner does not
violate any memorandum of understanding. In fact, this program is administered as
part of a decades-long practice in the District Attorneys Office. Moreover, in 2008
via discussions, and in 2011 via the MOU, the County explicitly recognized the
provision of paid time off for prosecutors.

Hicks Applies
   The holding in Hicks is instructive. The Hicks court held that the Orange County
Board of Supervisors was not authorized to transfer 22 investigative positions from the
district attorney's office to the sheriff's office. (Hicks, supra, 69 Cal.App.3d at p. 244.)
The court stated as follows:
   The board of supervisors has no inherent powers; the counties are legal
   subdivisions of the state, and the county board of supervisors can exercise only
   those powers expressly granted it by Constitution or statutes and those
   necessarily implied therefrom. (Cal. Const., art. XI, s 1; People v. Langdon, 54
   Cal.App.3d 384, 388-389; Byers v. Board of Supervisors, 262 Cal.App.2d 148,
   155.) An examination of the provisions of the applicable statutes and of the
   Constitution reveals that the board of supervisors has been granted no power of
   control over the district attorney in the exercise of his discretionary duties.
   Although the board of supervisors has the power to prescribe the number,
   compensation, tenure, and appointment of county employees (Gov. Code, s
   25300), the board has no power to itself appoint deputies or assistants to the
   district attorney (County of Modoc, supra, 103 Cal. at pp. 500-502); although
   the county board of supervisors has authority to supervise county officers in
   order to insure that they faithfully perform their duties (Gov. Code, s 25303),
   the board has no power to perform county officers' statutory duties for them or
   direct the manner in which duties are performed (People v. Langdon, supra, 54
   Cal.App.3d 384, 390), and although the board of supervisors exercises control
   over the county budget (Gov. Code, ss 29021.1-29101), the board may not, by
   failing to appropriate funds, prevent the district attorney from incurring
   necessary expenses for crime detection as county charges (Gov. Code, s 29601);
   Cunning v. County of Humboldt, 204 Cal. 31, 33-35.)
   (Id., at p. 242.)

       The Hicks court characterized the board of supervisor’s transfer of 22 investigative


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positions from the district attorney's office to the sheriff's office as an unauthorized
attempt to “control the district attorney in the performance of his investigative and
prosecutorial functions.” (Id. at p. 241.) Similarly, the County’s directive terminating the
District Attorney’s practice of providing paid time off to prosecutors is an unauthorized
attempt to control the manner in which the District Attorney performs his investigative
and prosecutorial functions.
          This unauthorized attempt at control can be found in County Executive Jeff
Smith’s directive to the District Attorney which states, in part:
    In the interim, there is authority, within single pay period, to change an
    individual employee’s schedule in order to recognize particular “off-hour”
    assignments. That is, if an employee is scheduled to work an evening or
    weekend assignment, it is allowed to reduce their weekday assignment during
    that pay period in order to allow for a balanced workload. However, this may
    be done only within one pay period.

          This directive betrays a profound misunderstanding of the manner in which the
District Attorney’s Office must operate in order to perform its essential investigative and
prosecutorial functions. First, it is essential that the District Attorney’s Office assist local
law enforcement after hours in the preparation and presentation of search warrants and be
available to homicide investigators in the event that a homicide occurs after hours. At the
same time, most prosecutors manage workloads that routinely require them to work more
that 40 hours a week. These workloads also require numerous court appearances and
meetings throughout the workweek. It is, therefore, unrealistic to expect a prosecutor
who has a full-time workload and who is also on search warrant duty for a full week after
hours to somehow achieve a “balanced workload” by taking some time off during the
same pay period. Trials, hearings and sensitive witness meetings do not just disappear,
nor are they easily re-assigned just because a prosecutor is required to take paid time off
in the same pay period in which the search warrant duty is performed. Paid time off must
be scheduled in a way that has the least amount of impact on the essential functions of the
District Attorney’s Office. The County Executive’s suggested directive has the opposite
effect.
          Consequently, the District Attorney’s paid time off program cannot be viewed
strictly as a “compensation” issue. Rather, it is a tool that allows the District Attorney to
staff assignments essential to the investigative and prosecutorial functions of the office.
As such, the County Executive directive is an unauthorized attempt to control these

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functions.


   3. Given the past practice of providing paid time off to prosecutors who work extra
       hours performing ride-alongs, search warrant duty and on-call homicide duty, can
       the County direct the District Attorney to alter or terminate this practice without
       first meeting and conferring with the GAA?


       No. The District Attorney’s historic practice of providing paid time off to
prosecutors is a binding implied condition of employment that cannot be altered or
terminated by the County or the District Attorney without first meeting and conferring
with the GAA. (Vernon Firefighter v. City of Vernon (1980) 107 Cal.App.3d 802, 817
[Firefighters past practice of washing their cars on City premises held to be an implied
condition of employment.], see also, Penns Manor Area School Dist., v. Penns Manor
Area Educ. Support Pers. Assoc. (2008) 953 A.2d 614 [Past practice of school district in
permitting custodians to accrue overtime by opening school for weekend activities created
a separate and enforceable term of employment.]; (Gov. Code ss 3504,3504.5, 3505.)
       In Vernon, the City unilaterally adopted a resolution, without prior notice to or
meeting and conferring with the union, that eliminated the rights of firefighters to use city
facilities to wash and maintain private vehicles. (Id.) This right was not memorialized by
ordinance, nor was it the subject of a collective bargaining agreement. (Id.) Nevertheless,
firefighters had been allowed to wash and maintain their private automobiles while on
duty since 1923. (Id. at p. 805.) The appellate court agreed with the “trial court’s
conclusion that the ’privilege of Fire Fighters to wash their cars ... on City premises with
City facilities was a practice that was ‘sufficiently widespread and of sufficient duration to
constitute an implied condition of employment.’”(Id. at p. 814 citing International Assn.
of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 972, [An
“existing and acknowledged practice” affecting conditions of employment has the same
dignity as “an existing agreement or rule.”].)
       Consequently, the Vernon court found that the City resolution was one affecting
the “terms and conditions of employment” within the meaning of Gov. Code s 3505. Gov.
Code s 3505 requires the City to give “reasonable written notice” to the Union of any
proposed legislative action “directly relating to matters within the scope of representation”
and requires the City to “meet and confer in good faith” with representatives of the Union
                                                 9
over mandatory negotiable matters. (Id. at p. 822.) Moreover, “the rule in California is
well settled: a city's unilateral change in a matter within the scope of representation is a
per se violation of the duty to meet and confer in good faith.” (Id.) As a result of the
City’s failure to meet and confer, the City’s resolution was void in its entirety for a
procedural violation of Gov. Code s 3505. (Id.)
       Here, as in Vernon, the County, without meeting and conferring with the GAA,
issued a directive terminating the long-standing practice of providing paid time off to
prosecutors who after normal business hours went on ride-alongs, performed search
warrant duty or were on on-call homicide duty. Hundreds of prosecutors have
participated in this program since at least the mid-1980s. As in Vernon, this practice is
“sufficiently widespread and of sufficient duration to constitute an implied condition of
employment.” Consequently, the County’s unilateral termination of this practice is a per
se violation of the duty to meet and confer in good faith. As such, County Executive Jeff
Smith’s directive terminating this practice should be considered void.




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