DSA Statement to the Membership

Every so often I get members who request I post a DSA announcement they received via email from the DSA. Some I do put up, others I don’t. This one, I am because the media already appears to be cutting chunks of information out or flat out not reporting the story at all. They seem to be willing to assist in dismissing this case as a “political stunt” for the sheriff. It is more than that. Her actions very well may be illegal and fraudulent, impacting not only deputies, but those that contract with the sheriff and the public at large. I hear there is also some panic over the ability of the sheriff’s office to function and work with others both inside and outside the agency now that John Hirokawa, the person who was considered to be the only voice of reason left on the fourth floor, is gone. Sources in the county are telling me at least some on the Board of Supervisors believe there is the potential for the complete breakdown of communication between them and the sheriff given some recent incidents. If that’s the case, this is going to be a real problem for the county to get resolved.

From the DSA:

Dear DSA Member,

    On July 26,2016 the DSA filed a lawsuit against the Sheriff in Superior Court for violations of Government Code 53069.8 and 26 U.S.C. 6672(a).  This lawsuit is the result of the Sheriff failing to abide by the law for years and refusing to discuss or resolve these known violations.  The DSA Board announced the intent to litigate this matter at the General Membership meeting on May 17, 2016.

HISTORY:

The term “pay job” is used by the Sheriff’s Office to describe supplemental law enforcement services provided to entities for special or infrequent events that need additional Deputy Sheriffs to ensure public safety.  The authority to provide these services comes from Government Code 53069.8 and is the only authority under which a government entity may provide police services to certain private and public entities on an infrequent basis.

It’s been a few years now since the Sheriff first proposed and then implemented changes to the pay job system.  All along the way we have met and expressed our concerns about the new changes.  As we started to look into the issue more and more we discovered our initial concerns were only the tip of the iceberg.

In October of 2012, the Sheriff implemented the new program after telling the DSA we did not have the right to negotiate the rate as it was outside the scope of bargaining.  During this same time, the DSA was busy negotiating a new MOU during one of the worst recessions we had ever seen.  Many remember the concessions we all took in that contract.

During negotiations we discovered the Sheriff had converted full-time positions into pay jobs and was also filling some overtime positions with pay jobs.  At one point, the Sheriff’s Administration proposed backfilling positions at pay job rate instead of  overtime.

Less and less members worked pay jobs due to the risks created by the Sheriff changing the pay job system.  As the DSA looked into this issue more we discovered the Sheriff’s pay job system clearly violating Government Code 53069.8.  In June of 2015, the DSA Board, through attorney Gregg Adam, sent a letter to the Sheriff, the County Executive, and the Board of Supervisors (Cindy Chavez, Dave Cortese, Mike Wasserman, Ken Yeager, and Joe Simitian).

The letter called out in writing the violations of law and asked for the County and the Sheriff to provide a justification or an alternate authority that allowed the current pay job system.  The Sheriff nor the County responded to our request.  Instead, in August of 2015, the Sheriff banned all DSA members from working pay jobs.  To this day, neither the County nor the Sheriff has responded to our attorney as requested.

In the same letter, we filed a public records act request for pay job documents starting in 2008.  It was not until February of 2016 (8 months later) that we began receiving the documents we requested.

We completed analyzing 2008 pay job data in April of 2016.  We discovered the Sheriff was charging pay job entities for Social Security taxes (also known as FICA).  We confirmed DSA members who worked pay jobs during that time did not have a Social Security taxes deducted and therefore were not receiving credits.  Based on current data, it appears the Sheriff was charging pay job entities for Social Security taxes but was not contributing it on behalf of those members that worked; a violation of Federal Law.

We also discovered the Sheriff had received over $145,000 in admin fees on the backs of members working these jobs.  This money was well over the cost of administering the program, which is estimated at between $40,000 and $50,000.

We also discovered that even in 2008, before the rate was lowered, almost two-thirds of all pay jobs were being filled by reserves and in some cases, exclusively by reserves; in violation of Government Code 53069.8.

In fact, we received documents showing reserve deputies were sought out over regular deputies in order to reduce costs.

PAY JOBS IN OTHER JURISDICTIONS:

We have been unable to find any other agency in the Bay Area or beyond which administers pay jobs as the Sheriff in this County.  We confirmed with San Jose PD that they administer their supplemental law enforcement services in compliance with the law.

We also confirmed with ALADS (the association representing LA Deputy Sheriffs), the largest Sheriff’s Office in the nation and the most experienced when it comes to contract law enforcement services, LA County administers supplemental law enforcement services in compliance with the law.

The Sheriff has violated the law governing supplemental law enforcement services for so long she has created the illusion that everything here is proper.  We understand Reserve Deputies may be affected by this change and regret another solution could not be found.  The reality is the law is clear and the current system must change.

We are so short staffed (30% according to June 2016 County budget documents) that reserve deputies will still be included in pay jobs.  The difference under the law is that full-time deputies get first chance.

THE CURRENT STATE OF PAY JOBS:

Today, the Sheriff continues to fill overtime positions in County facilities with reserve deputies and pay jobs are only offered to reserve deputies.  DSA members working courts could fill many of these positions but they are never given a chance.

During General Membership meetings we heard from members that they wanted pay jobs back.  After taking into consideration all of the history and all the work we had done to try to resolve this issue we found ourselves with only one option; file a lawsuit in court and have the court order the Sheriff to comply with the law. To do nothing would only ensure Deputies would never work pay jobs again.

Contrary to the rhetoric by some, the DSA files very few grievances and even fewer lawsuits.  Since 2008, the DSA has filed only two lawsuits (Failure to compensate Extra Help Deputies as mandated by law and a public records act request for documents showing discriminatory practices in promotional exams), two arbitrations (one of which was because the County took holiday pay and the Kaiser reimbursement from us without negotiating), and nine other matters which resolved without filing a grievance.

It’s important to note the following:

– In both lawsuits the court found in favor of the DSA and ordered the County to pay our legal expenses.

– Both arbitrations were decided in favor of the DSA.

– All other cases were settled without litigation.

This DSA Board and previous Boards share the same philosophy: We only litigate matters where we have exhausted other options and there is a highly probability of success.  This issue, like the previous cases mentioned, is no different.

You can review the complaint here.

We will provide updates on this issue as it moves through the court system.

    – DSA Board –

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4 thoughts on “DSA Statement to the Membership

  1. Pingback: Third Complaint Filed Against Santa Clara Sheriff | Casey Thomas' World

  2. Pingback: Sheriff Laurie Smith Scrambling for Campaign Cash While She Still Can | Casey Thomas' World

  3. The County website still lists John Hirokawa as Under Sheriff. Is he no longer employed as such?

    Thanks.

    JMO

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    • He’s on vaca this week. As of the information I have right now, your new Undersheriff will be the most hated man in the office, Karl Neusel, as of August 1st. Rick Sung, of money shuffling renown, will be new Assistant Sheriff.

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