Santa Clara County attorney is suing the DA — again

A Santa Clara County deputy district attorney who was reinstated after being fired is now suing his boss and the county, claiming District Attorney Jeff Rosen is preventing him from coming back to work.

The lawsuit represents the latest salvo in a yearslong dispute that started in early 2021 when Daniel Chung criticized criminal justice reform efforts in an opinion piece.

Chung, who Rosen fired in October 2021 for alleged misconduct including dishonesty, said Rosen is trying to ignore and circumvent a decision from an arbitrator last November that Chung should get his job back.

“This is all about playing fair and playing by the rules,” Chung told San José Spotlight.

The arbitrator’s ruling wiped away the allegation of dishonesty brought against Chung, noting it wasn’t supported by evidence. The arbitrator required Chung’s termination be reduced to a 30-day suspension, and that he be reinstated to his position within a month of the decision.

Rosen’s office didn’t bring Chung back to work within that time, and instead chose to “administratively” reinstate Chung in late December, essentially paying his salary but refusing to allow him to work, the lawsuit said.

“He is being placed in a state of indefinite limbo,” Andrew Ganz, Chung’s attorney in the case, wrote in the lawsuit, which was filed Feb. 1 in Santa Clara County Superior Court.

The lawsuit claims Rosen’s office is stopping Chung from gaining work experience, seeking promotions and rehabilitating “his professional reputation after an unjustified termination.”

Chung is seeking full reinstatement, back pay and benefits such as accrued leave time and salary step increases that he said he would have earned if he wasn’t terminated.

Sean Webby, a spokesperson for the Santa Clara County District Attorney’s Office, declined to comment on the details of the lawsuit, but indicated the office would respond in court.

“We look forward to filing our response to Mr. Chung’s filing,” Webby told San José Spotlight.

Not the first lawsuit

The lawsuit is the second Chung has filed against Rosen and Santa Clara County. Chung filed a federal lawsuit in September 2021, claiming retaliation against him for free speech after a series of incidents in the press and in person. The case is still pending, but the portion against the county was dismissed.

After writing the opinion piece in February 2021, Chung was disciplined and suspended for a week, in part because his official title was used without permission and because he used county equipment to write it. He was reassigned from criminal cases to the mental health and then juvenile division.

In an April 2021 opinion piece titled “Santa Clara County Deserves a New District Attorney,” Chung wrote that Rosen “chose to swiftly and furiously retaliate against me” for speaking out against violence toward Asians. 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.

On May 26, 2021, when the VTA light rail yard mass shooting occurred, the DA’s office was designated as the lead agency in assisting families of victims. Shortly before a major news conference, Chung arrived at an American Red Cross facility where family members of victims and other workers were being told to gather, according to the arbitrator’s report.

On the day of the shooting, Chung “crossed a bright line, swerving into the DA’s lane, when he showed up unannounced and uninvited at the Red Cross building on that day,” Arbitrator Paul D. Roose wrote in his decision. Chung was told to leave by his supervisor, and as he did, he was also escorted off the property by a district attorney’s office officer.

Chung claimed he was there to help, but the arbitrator said Chung also likely had “at least a subconscious desire to gain personal advantage from the situation,” as he considered running against Rosen for the district attorney’s seat. He later ran against Rosen unsuccessfully in June 2022, and even the campaign trail saw a dust-up between the two, when he accused Rosen of tripping him.

Roose suggested that Chung “created his own mess” that day, and recommended he not be given back pay after his reinstatement as a result. Chung’s attorney disagrees that the arbitrator has that authority.

Kitchen sink 

While Roose was not kind to Chung for a series of missteps and poor judgment, he also noted Chung “routinely worked extraordinarily hard” and was a successful prosecutor.

Roose also dismissed some lesser allegations Rosen’s office brought against Chung, including absence without leave and disrespect to coworkers, criticizing some of the charges as “baseless.”

Roose said the “kitchen sink” approach the DA’s office took with the allegations “merely waters down” its case.

Chung said Rosen’s prosecutors are expected to take hard courtroom losses in stride and move forward instead of holding grudges or looking back.

“The DA expects us to be professional, and if you lose something you lose,  you move forward and don’t be a sore loser about it,” Chung said. “I’m just holding him to the same standard.”

Contact Joseph Geha at [email protected] or @josephgeha16 on Twitter.