Office of the District Attorney an In-depth Investigation Prepared by

Note: Missing finding numbers detected: F9, F41, F52, F55, F61, F71

Commendations 8

• CM1
  Elimination of the DDA V position.
• CM2
  Creation of the new ADA position.
• CM3
  Reassignment of the displaced DDA V attorneys and their demotion to Senior Deputy District Attorney (Sr. DDA) status.
• CM4
  Addition of a two-year time in service credit as an early retirement incentive for middle and upper management under the prior Capizzi administration.
• CM5
  Elimination of the good cause requirement to demote middle management (old DDA V and new ADA) to a Sr. DDA position and to be “at will” (fallback rights). On December 10, 1998, Mr. Rackauckas presented the “Management Reorganization Proposal” to Jan Mittermeier, Orange County CEO, proposing the following organizational changes:
• CM6
  Eliminate the 21 administrative management DDA V positions.
• CM7
  Replace the DDA V positions with 15 executive level ADA positions.
• CM8
  Reduce and “Y-rate”2 the displaced DDA V employees to non-management Sr. DDA positions. In the December 10, 1998 proposal, Mr. Rackauckas wrote, in part: “The elimination of administrative management positions [DDA Vs] would permit the addition of six or more deputies to ‘line’ trial duties. Most importantly, the reorganization would permit the elected District Attorney to hire, discharge, and reduce managers ‘at will’ to effectuate departmental management goals and policies.” CEO Jan Mittermeier approved the above proposal in a December 11, 1998 memo to Mr. Rackauckas. The Board of Supervisors approved the proposal on March 23, 1999. 2 In this context, "Y-rate" means that employees retain the salaries and benefits of their eliminated job classification, which are held constant until they are in concert with the benefit structure of the position they are assuming. Final Report CJ – 11 Figure 1 DISTRICT ATTORNEY TONY RACKAUCKAS DIRECTOR MEDIA RELATIONS CHIEF ASSISTANT CHIEF BUREAU OF INVESTIGATION SENIOR ASSISTANT DIRECTOR SENIOR ASSISTANT SENIOR ASSISTANT FAMILY SUPPORT ADMINISTRATION MISDEMEANOR OPS FELONY OPS 1 FELONY OPS 2 ASSISTANT ACT ASSISTANT ASSISTANT FINANCIAL ASSISTANT ASSISTANT CHIEF FELONY FELONY FAMILY SUPPORT SERVICES CENTRAL CRIMINAL PANEL CHARGING WELFARE FRAUD ASSISTANT CHIEF INFORMATION ASSISTANT ASSISTANT ASSISTANT ASSISTANT FAMILY SUPPORT SYSTEMS HARBOR HOMICIDE TARGET/GANG LAW & MOTION WELFARE FRAUD ASSISTANT HUMAN ASSISTANT ASSISTANT ASSISTANT ORGANIZED FAMILY RESOURCES NORTH SEXUAL ASSAULT ECONOMIC CRIMES CRIME PROTECTION CLERICAL ASSISTANT ASSISTANT ASSISTANT SUPPORT SOUTH FELONY PROJECTS CON/ENV FRAUD GOV & COMM REL NARCOTICS FACILITIES ASSISTANT MANAGEMENT WEST CJ – 12 2001–2002 Orange County Grand Jury Comparison of the Former DDA V and New ADA Positions The 21 DDA V positions that were eliminated had been defined as administrative management. This job category was compensated according to the ML–J4 salary schedule and benefits package. Also, employment was protected against discharge except for “reasonable cause.” These positions were replaced with 15 ADA executive level (ML–E) positions. This job category was intended to differ from that of the DDA V with an expanded span of control, managerial discretion, and responsibility. Accordingly, this category also differed in its higher salary schedule and a significantly enhanced benefits package. This benefits package included an increased annual options plan to $3,500, a county contribution to the 401 (k) plan of three percent of biweekly salary up to an authorized amount, a car allowance of $465 per month, and fallback rights. As executive level employees, persons holding this position would serve “at the will” of the District Attorney and may be removed from their position at any time without notice, cause, or the rights of appeal. Upon removal, employees would have the right to return to their most recently held, non-executive management position. The DDA V position had a two-page job description that specifically dealt with the duties of a manager in the District Attorney’s Office. The executive manager ADA position has a generic job description that pertains to nine countywide job classifications. Nothing in the job description deals specifically with the District Attorney’s Office. Displaced DDA V Attorneys The elimination of the DDA V position caused the displacement of many of the prior 21 administrative management-level attorneys to non-management positions. These employees were reduced to the grade of Sr. DDA and reassigned to trial duties. They were also “Y-rated” for salary purposes. ADA Selective Recruitment The 15 newly created positions were filled from within the organization. In early December 1998, Mr. Rackauckas and Chief Assistant District Attorney Devallis Rutledge held a meeting with approximately 60 selected DDAs V and IV½ to announce the elimination of the ADA position and to describe the new Sr. ADA classification. Three of the four Capizzi ADAs were not invited to this meeting, and two were told not to apply. One of these former ADAs ran against Mr. Rackauckas in the 1998 campaign. The second former ADA also ran and, subsequent to his withdrawal, supported the Rackauckas opponent. He was also a defendant in the civil lawsuit of Victoria Chen, wife of incoming Chief Assistant Rutledge. The third former ADA, though remaining neutral in the 1998 campaign, was associated with the Capizzi administration. One-page applications were distributed, though no interviews were to be conducted. Among the candidates was a prominent former DDA V and a visible key supporter of a Final Report CJ – 13 Rackauckas opponent during the 1998 campaign. He applied but was rejected because, according to a member of upper management, he was “not popular enough.” This individual was also rejected during a subsequent September 2000 recruitment, though his performance reviews had been consistently “superior.” Early Retirement Incentive for DDA V Attorneys On February 26, 1999, Lisa Bohan-Johnston, Director, Administrative Services Division, issued a memo to DDA V staff announcing the above reclassification of DDA V attorneys and its effective date of April 9, 1999. This memo also introduced an early retirement incentive, approved by the Board of Supervisors on February 9, 1999. This retirement option, which added two years service credit to the DDA V attorneys and former executive managers, was intended to entice an early retirement by the demoted employees. Early Retirement Coercion of Former Capizzi Executive Managers Of significant note, however, prior to the Board of Supervisors approval on December 28 and 29, 1998, DA Elect Rackauckas, in his judicial chambers in the presence of a labor law attorney who was a Rackauckas campaign supporter, presented the early retirement option to the three former Capizzi ADAs discussed above, along with his request for their resignations effective January 4, 1999. Mr. Rackauckas refused to discuss what would happen if one of the former ADAs did not resign. The second former ADA was told that leaving the office now would mean going out as one of Capizzi’s top attorneys; it would also avoid lawsuits. The third former ADA was told that not accepting the offer might lead to less than desirable assignments next year. All three of these individuals consistently received performance reviews of “superior” or “outstanding.” Furthermore, Mr. Rackauckas took no steps to welcome, or otherwise integrate these prominent career prosecutors into his administration and retain the benefit of their combined 70 years of experience. At the same time, in late December 1998, organization charts of the new administration were distributed. They showed no positions for these employees. The first former ADA, unsure of a positive future in the Rackauckas administration, though not prepared to retire, accepted the offer effective March 31, 1999 with the two years service credit and an added 90-day paid leave of absence. The second former ADA was offered an additional 60-day paid leave of absence. On January 5, 1999, after informing Mr. Rackauckas and Chief Assistant Rutledge of his decision to continue employment, he was immediately placed on an involuntary paid leave of absence and was asked to clear his office. The individual was told that there might be no place for him in the organization and that the leave of absence was not disciplinary “yet.” During this meeting, the employee’s desk computer was removed from his office to conduct a search for abuses of county resources though there had been no prior indications of abuse. No abuses were found and, after 2 ½ weeks, he returned to work in a demoted line prosecutor position. CJ – 14 2001–2002 Orange County Grand Jury The third former ADA was also offered a 60-day paid leave of absence. On Friday, December 31, 1999, he met with Mr. Rackauckas to explain that necessary surgery preempted an immediate retirement. Mr. Rackauckas responded, “I do not want you here.” During the weekend, his office desk computer was removed. On January 6, 1999, Mr. Rackauckas and Chief Assistant Rutledge placed the individual on an immediate, involuntary leave of absence. He was subsequently called back to work three weeks later into a demoted line prosecutor position. There were no internal affairs investigations pending against the two former ADAs at the time they were placed on paid administrative leave. Elimination of Civil Service Protection On November 9, 1999, the Board of Supervisors approved the elimination of fallback rights from future “at will” agreements with the goal of effectuating “improved department effectiveness and efficiency.” The CEO’s Office initiated this policy change; it apparently applied to executive manager positions on a countywide basis. The result was that all attorneys promoted or hired to executive management positions after November 9, 1999 may be terminated from the District Attorney’s Office at any time without rights of appeal. Executive managers, promoted after November 9, 1999, are required to sign a waiver of rights form that acknowledges that they serve at the pleasure of the District Attorney and can be terminated from the office without notice or right of appeal. As a recruitment aid, as well as a counter to the possible reluctance of prospective management candidates to seek such positions without civil service protection, a severance package for executive managers was included in the benefits package. The package provides pay and health benefits for a period of 90 days. As a further incentive, Mr. Rackauckas made verbal assurances to newly promoted executive managers that, notwithstanding the “at will to the street”3 provisions, they would only be demoted back to a Sr. DDA position if they did not work out as a manager. Mr. Rackauckas placed notes to that effect in their personnel files. Mr. Rackauckas did not obtain approval from the Board of Supervisors or the CEO’s Office for this practice.