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USE OF PUBLIC OFFICE FOR PRIVATE GAIN BY AN ATTORNEY IN THE PUBLIC DEFENDER'S OFFICE

Subject of Investigation

Use of public resources for private purposes by an attorney employed in County of Sacramento Public Defender's Office.

Reason for Investigation

This issue came to the attention of the Grand Jury when it was alleged, in a television news item, that an attorney in the Public Defender's Office was using his county office address and phone number for private work. The Grand Jury wanted to know if there were policies covering this kind of activity.

Method of Investigation

The Grand Jury viewed the video tape that had been aired on a local news station showing allegations against a staff attorney for using his county office for "outside work".
For comparisons of local policies, jurors interviewed heads of legal departments of the City of Sacramento, Sacramento County Public Defender, the County Counsel and the District Attorney and obtained copies of their policies regarding such activity. The Grand Jury also reviewed the California Penal Code and Sacramento County Codes.

Background

State law prohibits the use of public resources for personal gain and certain incompatible activities by public employees. Some departments of local government have clearly stated policies covering such behavior by their own staff. Usually, these policies are given to new employees in writing or contained in an employee manual.

The Public Defender staff attorney whose actions drew our attention to this issue did use a county address, his county office phone number and office equipment for correspondence for family-related, uncompensated work not related to work he was doing for the Public Defender.

He used "comp time" for private work and court appearances, although "comp time" was not a formal benefit for staff attorneys and managers when this occurred. He did not have authorization to provide uncompensated representation and did misuse office resources.

There were no written policies in the Public Defender's Office governing such activity. His employees are advised orally that they should limit any outside work to certain services for their families, on their own time, using their own resources. "Own time", as defined by the Public Defender, means vacation time, not compensatory time off.

Lines are blurred regarding the use of time by staff and supervising attorneys because they hold managerial classifications. According to the Public Defender, there are no set hours or minimum hours required per week and no extra pay for overtime. Legal staff are required to work as long as it takes to get the job done.

The Public Defender informally permits some kinds of work outside of official assignments, decided on a case-by-case basis, upon a written request for permission and approval by a supervisor. The Public Defender indicated that staff attorneys are permitted to do work for close family members and pro bono work for community benefit on their own time and using their own resources. "Own time", as defined by the Public Defender, means vacation time, not compensatory time off.

The Grand Jury found that the County Counsel has no formally promulgated policies regarding outside practice of law by staff attorneys. He relies on Government Code Sec. 1126 which forbids activity for compensation which is inconsistent with the duties of the agency in which he or she is employed.
Sec. 1126 states, in relevant part:

"Except as provided in Sections 1128 and 1129, a local agency officer or employee shall not engage in any employment, activity, or enterprise for compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties as a local agency officer or employee or with the duties, functions, or responsibilities of his or her appointing power or the agency by which he or she is employed. The officer or employee shall not perform any work, service, or counsel for compensation outside of his or her local agency employment where any part of his or her efforts will be subject to approval by any officer, employee, board or commission of his or her employing body, unless otherwise approved in the manner prescribed by subdivision (b)."

He also relies upon Penal Code Sec. 424 which prohibits use of public resources by public employees for private gain.

The written policies of the Sacramento District Attorney and Sacramento City Attorney are more comprehensive and explicit.

The District Attorney has written policies dating back to 1982 that deal explicitly with outside employment and use of time by departmental staff. These include the requirements that vacation time or leave of absence must be used for outside work and written, prior approval by a supervisor is required. Office business machines and supplies may not be used for other than county business.

The Sacramento City Attorney has written policies included in the Personnel Manual given to each new employee. The policies require that a request, in writing, be submitted to a supervisor, detailing the nature, duration and county where the work will take place, the compensation that will be received, time off that will be needed, and any apparent conflict of interest.

Clearly written guidelines cover the use of city- owned portable equipment used by the employee to do office-related work at home. Office equipment may be used for outside work only if it serves the interest of the city and approval is granted.

Personal work may not be done during office hours. Service to family members other than legal dependents is classified as "outside employment." Attorneys may volunteer pro bono legal services, on their own time, to a recognized pro bono legal services program. They also may serve as judges pro tempore if such service does not conflict with assigned duties.

Findings and Recommendations

Finding # 1. There were no written policies in the Public Defender's Office specifying terms and conditions for work outside official duties.
Recommendation # 1. The Public Defender should adopt written policies that contain clear guidelines for legal practice outside the scope of employment. There should be no ambiguity regarding use of equipment, office space or time.

Finding #2. There was no evidence of inappropriate or incompatible activities on the part of legal staff in other departments, but all operate under different sets of policies regarding incompatible activities. The District Attorney has very specific departmental policies. The County Counsel relies on state law rather than internal departmental policies.
Recommendation #2. Policies should be consistent throughout all legal departments of the County of Sacramento. They should be included in the Personnel Manual or Employee Handbook given to each employee when hired.

Response Required

Penal Code Section 933.05 requires that specific responses to both the findings and recommendations contained in this Report be submitted to the Presiding Judge of the Sacramento Superior Court by September 30, 2001, from:

· Sacramento County Public Defender # 1 and #2
· Sacramento County Counsel #2
· Sacramento County District Attorney #2


 
2000/2001 Sacramento County Grand Jury - Final Report (Internet Version) June 30, 2001

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