DA sued over disputed reinstatement

Lawyers union suing Jeff Rosen on behalf of onetime political challenger Daniel Chung

SAN JOSE >> A Santa Clara County prosecutor who was once fired amid a series of conflicts with District Attorney Jeff Rosen, which came to include a free-speech lawsuit and a failed political run to unseat him, is suing Rosen again on the contention he has been put in professional “limbo” after he recently got his job back in arbitration.

The Government Attorneys Association — which represents the county's line-level prosecutors and public defenders — filed suit last week against Rosen and the county on behalf of Deputy District Attorney Daniel Chung. An arbitrator last fall ordered that

Chung go back to work by early December, but the lawsuit asserts that was delayed and eventually turned into an “administrative reinstatement” that put him on the payroll without any assigned duties and kept him from physically returning to the office.

“The County and District Attorney have not allowed Mr. Chung to return to work despite a deadline that we are now nearly two months past as of the date of this filing, and also refused to tender other benefits to which Mr. Chung is entitled,” the lawsuit states.

In a response filing asking a court to dismiss the suit, Rosen attorney Jonathan Holtzman stated the in-between status of Chung was “expressly fashioned” by the arbitrator as a way to urge the two sides to reach a monetary resolution. Holtzman further asserts that Rosen has sole discretion on how to administer his office and assign duties, and that a court overriding that discretion would amount to a violation of state law.

“While the District Attorney recognizes the anomalous result here — that Plaintiff is continuing to receive his County salary without having to work for it — a prosecutor's obligations are heavy, and the District Attorney has ample reason to believe that he cannot entrust Plaintiff to handle those responsibilities on his behalf,” Holtzman wrote.

Chung gained public profile in the spring of 2021 after he claimed Rosen's office demoted

and sidelined him after he published an opinion piece in this newspaper criticizing criminal-justice reforms. After he was recommended for termination later that year, he sued the office and the county in federal court, characterizing the office's actions as retaliation and a violation of his First Amendment rights.

The free-speech lawsuit remains in litigation after a judge dismissed the county from liability and left Rosen as the primary defendant. A key dispute in the case revolves around whether Chung was writing in his capacity as a private citizen or as a representative of the DA's office, though in the separate employment dispute the arbitrator ruled against Chung on that issue.

Between those points, things between Chung and his employer got ugly publicly, including when he spurred a commotion by showing up at a DA-run recovery center for those directly affected by the May 26, 2021, mass shooting at the VTA railyard in San Jose. Chung was put on administrative leave two days later when he was escorted out by armed DA investigators, and he was depicted in an office-wide bulletin warning staff not to allow him on county property.

The arbitrator upheld but lessened a suspension after the initial op-ed, but also found that Chung “crossed a bright line” when he later went to the recovery center in a politically motivated move six weeks after a second op-ed in which he called for a change in district attorney. Chung “lost sight of the fact that part of his job was to follow, or at least not oppose publicly, the DA's prosecutorial priorities,” according to the arbitrator.

Arbitration started that year and ended this past November, when Chung was ordered reinstated, though without back pay — a point of contention in the new lawsuit. Amid the middle of the arbitration proceedings, Chung ran for district attorney, positioning himself as a whistleblower and reform advocate. He placed second in a three-candidate race in the June 2022 primary with 24% of the vote, though Rosen won election to a fourth term outright by winning 55%.

So why would Chung want to work at a place and for a boss who clearly doesn't want him there, and why does he think he can reestablish any semblance of a productive work environment?

“I love my job, I love being a deputy district attorney, I love being a prosecutor. I find that the work is extraordinary and rewarding. I want that back,” Chung said in an interview with this news organization.

“We work with adversaries all the time; we win cases, we lose cases, we fight in very public battles, and at the end of the day after the verdict is in, we move on to the next day,” he added. “Bosses will come and go, but the criminal-justice system will continue, and my ultimate job is to serve the people and I've shown I'm still able to work under this boss even after criticizing him.”

Holtzman responded to those claims in the filing, citing the arbitrator's assessment that they were “highly skeptical” of Chung's claim that “he could set aside his negative feelings towards DA Rosen,” and that it was “unrealistic” to think that Chung could return to his job in the DA's office and “keep his head down, and ignore the bigger picture in the office.”

The filing on behalf of Rosen suggests that the current arrangement is a stopgap until Chung decides to go away.

“The message was clear, neither party got what they wanted from the Award: Plaintiff would no longer be permitted to perform the duties of a deputy district attorney and the County would be stuck paying his salary until he voluntary resigned or found other employment,” Holtzman wrote.

But Chung said the prospects of advancing his career as a prosecutor rest on his ability to reenter the office and rehabilitate his professional reputation by working.

“I cannot gain work experience or work toward promotions and other things I'm entitled to,” he said. “I didn't create the rules … I understand they may not want me back, but they offered me final and binding arbitration. This arbitration only has any substance and meaning if it can actually be enforced. It's about fairness.”