Santa Clara County DA refuses to reinstate former employee

An embattled Santa Clara County deputy district attorney should be back at work after the DA’s decision to fire him last year was overturned. But his boss is putting up a fight.

A Nov. 10 arbitration ruling between the Santa Clara County District Attorney’s Office and the Government Attorneys Association, the union representing Deputy District Attorney Daniel Chung, ordered the office to reinstate Chung by Dec. 9—overturning DA Jeff Rosen’s decision to terminate him. The arbitrator found Chung had used poor judgement in past incidents involving Rosen, but largely disagreed with the DA’s basis for firing Chung, including his claim that Chung had been dishonest.

But the office has repeatedly delayed Chung’s reinstatement, Chung said.

Internal emails obtained by San José Spotlight show Rosen and the county are in the process of retaining San Francisco attorney Jonathan Holtzman in an attempt to resist Chung’s reinstatement. Holtzman confirmed he plans to represent the county, but declined to comment further.

As of Friday, Chung said he’s back on the county payroll, but is forbidden from returning to the office. Though emails show the county’s legal counsel affirming Chung has been administratively reinstated, the county claimed it can’t force Rosen to allow Chung to return to work.

“I was supposed to be reinstated as a deputy district attorney, not reinstated as someone receiving a paycheck,” Chung told San José Spotlight. “It’s like a limbo state that I’m in. I literally can’t work.”

The arbitration ruling, obtained by San José Spotlight, is the result of a nearly two-year battle between Rosen and Chung sparked by the deputy DA’s publicly critical views of his boss. The controversy has since erupted into an ongoing lawsuit by Chung against the county and DA’s office filed in September 2021. The lawsuit accuses Rosen of violating his right to free speech by retaliating against him for writing op-eds critical of the office.

A judge dismissed Chung’s claims against the county in October, but his suit against the DA is ongoing. The next hearing is set for January.

“The taxpayers are supposed to be paying Daniel’s salary and (are) not getting anything in return,” Jim McManis, Chung’s attorney, told San José Spotlight. “Basically, Rosen’s just giving him the finger. It’s disgraceful.”

DA spokesperson Sean Webby declined to comment on personnel matters. The county counsel’s office did not respond to requests for comment.

A Government Attorneys Association representative declined to discuss the specifics of Chung’s reinstatement, citing confidentiality issues.

A longstanding feud

The struggle for Chung’s reinstatement is the latest development in an ongoing fight between Chung and the district attorney, which began in February 2021 after Chung wrote an unauthorized op-ed criticizing criminal justice reform movements in the wake of several high-profile, racist attacks against Asian Bay Area residents.

In later articles and public comments, Chung described a mismanaged DA’s office where prosecutors slept with witnesses, used campaign funds to reimburse non-campaign costs and withheld evidence in criminal cases. The district attorney has repeatedly declined to comment on Chung’s accusations.

In response to Chung speaking out, Rosen placed him on paid administrative leave in May 2021. The DA then issued security notices barring Chung from county property and two “be on the lookout” notices alerting employees to keep an eye out for Chung.

Rosen fired Chung in Oct. 2021, but Chung appealed the decision. He later announced he would challenge Rosen for his job in the June primary election. At an election debate, Chung and fellow challenger Sajid Kahn, a deputy public defender, claimed Rosen tripped Chung. Chung lost the election, receiving less than half as many votes as Rosen.

Asked why he would want to keep his job after such a heated feud with his boss, Chung said even if he wins his lawsuit, the only way to clear his name is to regain his old job.

“It’s an inherently hostile work environment, but I believe that going back is a necessary step in resetting my career and my reputation,” Chung said. “As an attorney, your reputation is the most valuable thing you have.”

Contact Brian Howey at [email protected] or @SteelandBallast on Twitter.