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Deputy District Attorney James B. Sibley in his office in San Jose, 2008. (LiPo Ching/Mercury News)

In the latest sign of friction within the Santa Clara County District Attorney's Office, top prosecutor Jeff Rosen on Wednesday demoted the most outspoken critic of his controversial paid administrative-leave policy -- prompting the attorneys union to condemn the move as retaliatory and initiate legal action to overturn it.

Jim Sibley, a 20-year veteran prosecutor whom Rosen had appointed to supervise the narcotics team, was demoted to his previous position as a trial deputy. Rosen also reassigned Sibley from San Jose to the more remote Palo Alto office, adding about 17 miles to his commute from Scotts Valley.

Rosen declined to comment directly on his decision since it is a confidential personnel matter. But he called the union's accusation an "unfortunate and false allegation."

"Trial attorneys with great skills and promise are promoted, and supervising attorneys are rotated back into courtrooms," he said in an emailed statement. "Those rotations create a deep bench of talent and experience at all levels."

But the Government Attorneys Association, which represents prosecutors, public defenders and child-support attorneys, said Rosen is punishing Sibley for his stance opposing Rosen's generous use of extra time off in the form of paid administrative leave.

Rosen is under civil investigation by the state Attorney General's Office for the practice, which may violate the state government code banning "the use of public resources for a purpose not authorized by law," also known as a gift of public funds.


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Rosen gave about 15 of his top deputies the extra time off to make up for a 5 percent bonus they lost as part of countywide cutbacks. The end run around the pay cut is controversial because it allows the attorneys -- who are among the office's highest-paid lawyers with salaries of $195,340 each -- to preserve vacation time they might otherwise have used and sell it back to the county later for cash. One attorney who recently retired has already cashed out some of it. The vacation payouts would put back in their pockets about the same amount of money they lost in the contract negotiated by the Government Attorneys Association over Rosen's objections.

The union took several steps Wednesday to try to overturn Sibley's demotion, including asking to meet with county executives and drafting declarations and other legal documents in preparation for a possible grievance. Supervising attorneys serve at the will of the district attorney, but demotions cannot be for unlawful purposes, including retaliation.

"GAA will pursue any and all legal and administrative remedies to defend our members against the retaliatory and intimidating actions by DA Rosen," union president Max Zarzana said.

Sibley was one of the supervising attorneys who received the extra time off, though he hasn't used any of it, he said. But he expressed reservations about the practice to then-Assistant District Attorney David Tomkins when it first started in 2011. Sibley has also tried to give it back twice, including in a signed letter to all the attorneys in the office.

However, he didn't protest when the county accidentally paid him the 5 percent bonus for more than a year, prompting Rosen to investigate him for possible disciplinary action. Sibley said he didn't notice the overpayment, partly because he has direct deposit, his pay dropped after the federal payroll deduction was restored and he and other attorneys were forced to take seven unpaid furlough days under the union contract. He was cleared of any wrongdoing.

"This is not just about me," Sibley said. "This is a message to everybody that says, 'This is what happens to you if you don't go along with my program.' "

Rosen's treatment of Sibley has raised anxieties in the office, particularly among those who see the transfer to Palo Alto as a frightening example of "freeway justice" -- meaning when someone in the criminal justice system is exiled by an irritated boss. Sibley said it will be particularly onerous because he will be further away from helping his wife out with their 14-year-old autistic son.

But Rosen said his three offices -- in San Jose, Gilroy and Palo Alto -- are equally important and that he strives to ensure the best mix of lawyers on each team.

"Every lawyer in every assignment, from misdemeanor court to the homicide unit, is on an excellent team," he said. "My administration builds and rebuilds these teams, seeking the best possible fit to fight crime on behalf of the people of Santa Clara County."

Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/tkaplanreport.