SAN JOSE -- In the first test of District Attorney Jeff Rosen's tough approach to discipline, a personnel review board Friday upheld his firing last year of prosecutor Lisa Rogers for abusing her power by pressuring police to arrest her husband's ex-wife.
The 3-2 vote by the Santa Clara County Personnel Board came despite Rogers' testimony that she was fired solely because she is severely hearing-impaired and relied on a stenographer funded by the District Attorney's Office.
"I felt ... the discipline was discriminatory," Rogers testified Thursday before the board. "I was targeted and treated differently because of my disability."
The panel also unanimously upheld former DA Dolores Carr's decision in 2010 to suspend Rogers for a week for alleged incompetence and misconduct, despite Rogers' claim that her lack of hearing triggered misunderstandings. Rogers, 49, is legally deaf in one ear and has limited hearing in the other because of an autoimmune disease.
As a result of the board's decisions, Rogers will lose her annual salary of $142,328, as well as a valuable county perk -- virtually free post-retirement medical benefits for life. However, she will still be able to draw a pension at age 50 for the 13 years she worked in the office. She was not at the hearing and could not be reached for comment.
The board's decision is vindication of sorts for Rosen. With the rare firing of Rogers in April of last year, he demonstrated that he is taking a hard line on discipline that in many respects exceeds that of his predecessors. According to a recent Fordham Law Review article, American prosecutors are rarely disciplined.
Rosen issued a statement after the board's decision noting that Rogers' conduct is the exception, not the rule, in an office with an "outstanding" staff.
"Ethical prosecution and behavior is fundamental to our mission," Rosen said. "This fact was underscored today by the personnel board's excellent decision, made after a careful and thorough process."
Rosen campaigned on an ethics platform after a series of scandals involving prosecutors who sought to win cases by ignoring judges' orders, improperly withholding evidence and committing other missteps. Among other steps, Rosen has yanked an attorney off a major gang case for improperly withholding crucial evidence from the defense until the brink of trial and suspended him last year for a month. More than 16 prosecutors have left since Rosen took office in 2011.
However, the district attorney also has launched formal investigations of attorneys for more minor alleged transgressions, earning the enmity of the Government Attorneys Association. Rosen and the union, which represents prosecutors, public defenders and child-support lawyers, are locked in a power struggle that has deeply divided the staff.
Rogers was disciplined on five other occasions. In the case that got her fired, Rosen concluded that Rogers tried to use her title to gain an advantage for her husband in his custody battle against his ex-wife -- in three separate incidents involving police. He also found Rogers lied in a written declaration she filed in family court in support of her husband's request for a restraining order against the ex-wife.
In the most serious of the police incidents, Rogers sought to get the ex-wife arrested and prosecuted for second-degree felony robbery of a cellphone. A conviction could have carried a five-year prison sentence. But law enforcement officials in Contra Costa County decided not to prosecute the incident, which occurred when the ex-wife grabbed her ex-husband's cellphone during a contentious dispute.
Rogers may appeal the board's decision to Santa Clara County Superior Court. But the court rarely overturns a Personnel Board decision.
The five-member Personnel Board split along labor and management lines on whether Rogers should be fired, with the board member who is considered neutral, Martin Alvarez, casting the vote in favor of termination, along with two former county administrators, William Anderson and Steve Cushing.
"The majority believed the power of a police officer or a DA is a power that must be utilized with great care," Anderson said. Another factor he said influenced the decision was that, "From start to finish, the appellant never admitted she did anything wrong about anything."
Of the two union activists who voted to reinstate Rogers, Libby Spector said she disapproved of Rogers' conduct but believed the appropriate punishment was a 30-day suspension. The other pro-labor panelist, Denis O'Neal, said the District Attorney's Office should allow wiggle room when it comes to prosecutors "flashing their badge" in their private life under certain circumstances, especially if the appellant believed even mistakenly that her safety was at stake, as Rogers claimed.
Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/tkaplanreport.