So, I was sent information over the weekend on a recent development in an ongoing effort by the DSA to work with the sheriff and her ongoing efforts to undermine the DSA.
The sheriff seems to be willing to put everyone on the line in order to take her pound of flesh from the DSA. First she removed all enforcement sergeants from the jails oversight positions. Then she ordered enforcement personnel could only do overtime in the jails if there were no corrections personnel interested in providing coverage. Fair enough, with the change in structure it’s a viable change in some respects. And if it stopped there it would be one thing. However she continues to take it further, she has continued and in some cases even increased the assignments and overtime in enforcement positions being offered to extra-help deputies, reserves and corrections personnel — increasingly before even letting the DSA members know about the need to be fulfilled.
But then there is a tool she’s been using in an increasingly questionable, potentially illegal manner to further gouge at deputies pay and security. Pay Jobs. A practice in wage theft in and by a county that is frequently running it’s mouth about how it stands against wage theft — including some of the sheriff’s closest political allies.
The latest issue to hit the boards is something of an old one. Pay Jobs blew up in the public to a degree when the Santa Clara Police Department staffed Levi’s Stadium extra officers with Pay Jobs. It’s my understanding this is an issue that may still be leading to issues with staffing there at times.
The issue has been on the table long before that though. According to information recently released by the DSA, this has been up for discussion since at least 2011. However, even after claiming an understanding that she needed to better work with the DSA and addressing issues last year, the sheriff to this day continues to refuse to talk to the DSA and address some of these questionably legal practices.
The sheriff has held deputies hostage, knowing that there will be bodies to fill most urgent Pay Jobs needs because there will always be deputies that will be in need of a little extra cash, just like anyone else. She knows she can continue to abuse those deputies for her benefit by using Pay Jobs. The county has bowed to the sheriff’s demands to refuse to discuss Pay Jobs during MOU negotiations, she has refused to talk to the DSA for years; if the sheriff keeps holding her breath, and the county refuses to intervene in her questionably legal actions, it all appears to be heading towards yet another law suit against Sheriff Smith. She’s lost nearly all of the suits personnel have brought against her that I’m aware — from several suits involving K9 officers (all for the same issues, strangely enough) to the most recent where she was found to be conducting wage theft against extra help deputies and a number in between.
I got the distinct feeling that the public didn’t fully understand the risk being posed to deputies and what exactly the sheriff was doing in regards to how she used Pay Jobs when it came to public light. It’s a complex and confusing topic. It’s one that I’m still learning about, so rather than go into details here which I may miscommunicate, you can read more about these issues in an email below sent out by the DSA , the attached letter the DSA submitted to County Counsel, the Board of Supervisors, and the Sheriff Herself via their attorney and there is also a detailed explanation of each issue the DSA has with the current process of how Pay Jobs are managed in a letter to the DSA body.
The DSA has given the sheriff a year since the election to hold true to her promises. It’s time to step up and start taking action against a sheriff that continues to create more issues than she resolves.
The DSA has made every effort to support the sheriff over the past year and they have to continued to make attempts to engage in conversation to improve the issues at hand. The sheriff refuses to work with the DSA, continues to work against the interests of the office, the deputies, and most importantly, she continues to make decisions that have potential to put the public and her personnel at risk.
Dear DSA Member,
· For years now, the Sheriff has been operating a pay job system which the DSA believes is unlawful, which subverts the DSA MOU, and which creates poor working conditions.
· After thoroughly researching this matter, the DSA attempted over a long period to engage the Sheriff’s Office in discussion on the many problems we identified with the current pay jobs system. The Sheriff’s Office was unable to provide lawful authority allowing the current scheme to exist (given numerous restrictions in the California Government Code).
· Sometimes the best way to think about a problem is to look at how others find solutions. When it comes to contracting for police services, The Los Angeles County Sheriff’s Office has perhaps the most experience in the country.
· So how does it handle pay jobs (also referred to as secondary employment)? LA Sheriff Deputies receive overtime, are considered to be working for the county at all times, and are provided with all the protections and benefits they receive when working their normal positions. How is it that the largest Sheriff’s Office in the country can figure this out and yet Santa Clara County attempts to short change its employees on the same issue?
· The DSA Board believes the pay job problem must be addressed now before the current and projected issues turn into long-term problems that will surely be even more difficult to deal with. Here are some of the facts we know about the current pay job system based upon the Sheriff’s actions and statements.
o The Sheriff refuses to negotiate with the DSA over the pay jobs rate of pay. In 2011, the Sheriff refused to allow any references to pay jobs in the DSA MOU.
o Currently, the position of the Sheriff’s Office is that the pay job rate can be changed at any time, for any reason, to any number. In theory, the Sheriff could choose a pay rate as low as minimum wage if she wanted to.
o The existing problems identified in January of 2013, such as LDF, PERS, 4850, Civil Liability and others, are still true today (previous letter to the membership is attached).
o The Sheriff has signed contracts with other county departments where a Deputy Sheriff was specified but the job was slated to be pay job only.
o The Sheriff has previously proposed that back-fill for some positions (due to vacation, sick or injury) would only be done as a pay job, and not as overtime.
o The Sheriff has, and continues to have, the option of mandatory overtime for unfilled pay jobs.
o Though a Deputy is acting as a private security guard for a private entity, deputies are expected to act as peace officers; for example, making arrests, transporting prisoners, writing reports, and then testifying in court on those same cases. The scope of a pay job is indistinguishable from the regular duties of a Deputy Sheriff.
o There is no written policy on how pay jobs are administered or to whom they are assigned.
o Retirees are working pay jobs and are not being told that the hours worked count towards the maximum of 960 hours per year allowed by PEPRA.
o The current pay job rate does not included incentive pay, CIP, or night differential.
Based upon what we know at the moment about pay jobs and the Sheriff’s previous decisions, we project the following problems.
· Before Measure B decimated the San Jose Police Department, there was little paid overtime. Most officers relied on secondary employment to earn extra money. If the Sheriff continues to shirk the law, there appears to be nothing preventing her (except in our view the law) from converting overtime or permanent positions into “pay jobs.” Members will be working more hours to make less money. As in the case of San Jose Police Department today, the rate of pay eroded and officers work more hours to make the same money. While this may be acceptable for a short period, it cannot be sustained over a long period of time. Many have expressed the sentiment that they are tiring of overtime because it has negative effects on family and personal lives. We work so we can live, not live so we can work.
· DSA is already 70 positions under-staffed. The Sheriff continues hiring Extra-Help Deputies in place of regular Deputy Sheriffs to fill vacancies in the courts. We have seen annual vacation slots cut in half in some divisions, and it is all too common to hear PL days will be denied due to low staffing or overtime will not be backfilled, leaving less people to do more work. The increased use of pay jobs will only further spread thin the limited members we have today.
· There is nothing in place to ensure equity for the assignment of pay jobs. If pay jobs become more prevalent, they will be ripe for abuse and conflicts among the membership and reserves. San Jose Police Department has already had these problems.
· With the challenges faced in our last contract, we are concerned
Letter to the County & Sheriff: GMA lt Smith-Korb-Cortese re Pay Jobs.docx
Established Concerns: DSA Pay Job Statement