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The union representing Orange County’s prosecutors, public defenders and other attorneys is threatening legal action following an Orange County Board of Supervisors vote to expand a watchdog department for the Orange County Sheriff’s Department to also scrutinize the lawyers.

The last time the Orange County Attorneys Association took their employers to court it won a partial victory that led to the board settling the legal dispute. In that dispute the issue was the same. The attorneys argued county officials failed to collectively bargain a dispute over salary and forced a contract on them.

The board agreed in May to pay $10.5 million to the county’s attorneys working in the Orange County District Attorney’s Office, Public Defender’s Office, County Counsel’s Office and Child Support Services division, which was roughly the difference in what they were receiving in salary versus the contract imposed on them two years ago.

Now the dispute is over a proposal to expand the Office of Independent Review to also scrutinize complaints against the attorneys on the county payroll.

The board voted 3-2 Tuesday to move forward with exploring the possibility of expanding the agency to include oversight of the Orange County Public Defender, Social Services Agency, Probation Department and District Attorney’s Office. Supervisors Shawn Nelson and Michelle Steel cast the dissenting votes.

Board Chairman Todd Spitzer and Supervisor Andrew Do, who were in charge of an ad-hoc committee studying the expansion, tried to assure union leaders on Tuesday who objected to any change without collective bargaining that they were only deciding whether to go forward with planning an expansion, not an actual expansion.

Spitzer also argued that the agency would not get into the nitty gritty of specific cases with complaints of misconduct.

Senior Deputy District Attorney Larry Yellin, the union’s president, told City News Service the union is considering legal action against the county.

“What it appears to me is an attempt by members of the Board of Supervisors to usurp the power of another elected official, Tony Rackauckas, who was elected by the people and I find that offensive,” Yellin said.

“If you want that job then run for that job. If you don’t then stay out of it, but the people have continually elected Tony to be the DA.”

Yellin said the board’s plan is “awkward, unwieldy and illegal,” because it would violate “separation of powers” laws keeping the county board from interfering too much in the business of the elected district attorney.

“We have a legislative group trying to stick their hands into an executive function,” Yellin said. “I don’t think this kind of oversight should come into any of the legal offices of this county.”

Yellin finds the scrutiny of complaints against the District Attorney’s Office “more objectionable” than the Public Defender, but he added that the OIR could not do its job properly regarding gripes with the Public Defender because of the attorney-client privilege.

“It’s very important that they operate as attorneys for their clients,” Yellin said.

“The government, by United States Supreme Court fiat must supply attorneys for indigent people and they don’t get to then tell them how to do their job — whether they should go to trial, plead guilty, have better relationships with their clients, go faster or go slower. All of this has the ability to invade (the attorney-client privilege).”

To truly investigate a complaint the county would have to have access to the defendant’s case file, which is forbidden, Yellin said.

“They can’t show you that file to defend themselves,” Yellin said of the public defenders.

Do said Tuesday the vote was one on “policy,” and the details will come later.

“Right now we need to decide policy and then personnel,” Do said.

Nelson blasted the idea of expanding the OIR, which all of the supervisors were disenchanted with for not doing a more thorough job of oversight on misconduct cases in the sheriff’s department.

“The OIR did not do what it was supposed to do,” Nelson said.

“The OIR was absent and that’s why he’s not here anymore, so help me understand why when we are totally incapable of doing the OIR at a minimum level properly… why we would take an OIR that has not worked and expand that.

“So, we’ve got a mechanic who couldn’t fix a tire so let’s put him in charge of the engine and transmission. That will do it. This is ridiculous. No one would do that.”

The board on Tuesday also accepted a report from Michael Gennaco, a principal of OIR Group, that offered recommendations on expanding the office. The board paid Gennaco $40,000 to do the report.

The committee was formed, and Gennaco was hired, because of the board’s dissatisfaction with the current Office of Independent Review, which was formed in February 2008 following the beating death of an inmate who was being held on suspicion of possession of child pornography.

City News Service


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