DA Rips County Counsel

DA David Eyster’s remarks to the Board of Supervisors stunned everyone in earshot (Tuesday, Oct 7) because it’s extremely unusual in Mendocino County for a lawyer to public denounce a fellow lawyer. (Eyster made two sets of remarks: First was pay-raise-related; Second was regarding Losak's pending closed session evaluation.)

“Salary Issues: Mendocino County Human Resources policy clearly defines ‘acting’ department head, but there is no policy, and I stress there is NO policy, and no discernible difference in the English language between ‘acting’ and ‘interim’ except ‘interim’ is not part of the county human resources jargon until now. Has the board created a new employment category? ‘Acting’ is defined in Mendocino County Policy Number 41. I assume that Mr. Losak as chief Deputy County Counsel was receiving a salary based on my analysis of approximately $97,627 per year. ‘Such pay increase to the acting department head should not be greater than 10% unless the assignment is for longer than six months. Upon the authorization of the board the salary may be adjusted another 5% after the initial six months. If the difference between the employee's previous pay range for the hiring classification is greater than or equal to 20%. Unless the term ‘interim’ is being used intentionally to circumvent county policy, Mr. Losak's salary extension can only be an additional 5% over his previous salary per human resources policy and procedure for increase of $4481 per annum to the previous 10% raise of February 2014 for a final annual salary of $112,271 per annum. Also pursuant to that policy the Director of Human Resources has declared that every 4-6 months the board should conduct an appropriate review of an ‘acting’ employee, except in the case of extended illness of the incumbent of the position being covered, but no such acting classification shall last longer than one year from the date of the first assignment. However, if there is a need to exceed one year, the human resources director will review such assignments for appropriateness. Other compensation, and I stress, normally associated with a higher classification shall not be granted during any acting or temporary out-of-classification assignment.’

“Two individuals in the past have been Acting District Attorney, Mr. Faulder and Ms. Norman. These assignments both involved supervising the County's major law enforcement and public safety office of approximately 45 employees versus the County Counsel office's eight employees. Both were rewarded with a salary of $92,830.

“Regarding the Closed Session Evaluation, County Counsel: Having a patron, especially when that patron is Chairman of this Board, is a good situation for Mr. Losak. However, while the Chair believes that acting County Counsel's work product ‘has been nothing less than extraordinary,’ to quote from the Ukiah Daily Journal, that is not the characterization that I and other attorneys would use. I would like to share my experience with Mr. Losak. I hold my attorneys to a higher work standard and public standard than you have held for your County Counsel. Generally, after his early-morning run in with the law, Mr. Losak would have been asked to resign or would have been fired if he had been working in my office. There are legal ratings services that may assist this board concerning how the Acting County Counsel may be viewed by the greater legal community in total objectivity. The old-school rating service, Martindale Hubbell, conducts peer reviews of attorneys. After evaluating confidential responses including those of local peers and judges, Martindale issues an attorney rating, the highest of which is an A/D rating. The top two attorneys in the District Attorney's Office, the District Attorney and Assistant District Attorney, have been peer-reviewed by this system and have been rated A/D Preeminent, five out of five. There are 68 attorneys in Mendocino County who have been peer-reviewed and only 22 of the 68 are A/D rated. In my case I have held my preeminent rating since 1998. No other attorney in the Mendocino County Counsel's office has been peer-reviewed, and all are unrated. The newer school rating service, AVVO, rates attorneys based on a confidential algorithm which factors experience, industry recognition, publishing and professional conduct. Six of the top 15 lawyers rated in Mendocino County out of a total of 209 attorneys work in the District Attorney's Office. The top three AVVO rated attorneys in the county who are rated superb are the District Attorney, 10 out of 10, Ms. Norman 10 out of 10, and Assistant District Attorney, 9.9 out of 10. Mr. Losak's rating is 6.5 out of 10. He is the highest rated attorney in the County Counsel's office, yet he is rated number 65 of the 209 attorneys in the county. Part of being extraordinary is the ability to give correct and timely legal advice. The chair has expressed his enthusiasm over the case involving the baby's death in Fort Bragg. Assuming that the County should have paid any amount, the Assistant District Attorney's decisive prosecution was what opened the door for the settlement. I should note that even my young attorneys would know how many votes it takes to pass any item when only three supervisors are in attendance. Finally, Mr. Losak's recent opinion that County department heads need not respond to grand jury reports is not only an affront to the grand jury system, it is contrary to law. See Penal Code 933. Section B. And please remember the Brown Act. Your closed session today has been agendized as a closed session performance evaluation for Acting County Counsel only. By law, please let me remind you, salary cannot be discussed as part of today's closed session.”

After warning the Board not to discuss Losak's pay raise in closed session, Eyster added, “otherwise I'll be back here with a lawsuit myself.”

According to observers at the Board meeting, the Board and Losak seemed stunned. Losak appeared to be coughing, choking, turning red and trying to scrunch down in his chair. Most of the people in the audience, mostly County employees, applauded as Eyster returned to his seat.