Ethics Experts Question Campaign Work by Supervisor’s Top Aide

Brian Probolsky (left) is the chief of staff to Supervisor Andrew Do (right). (Photo credit: Twitter and Andrew Do for Supervisor 2016)

Brian Probolsky (left) is the chief of staff to Supervisor Andrew Do (right). (Photo credit: Twitter and Andrew Do for Supervisor 2016)

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In an arrangement that’s drawing questions from ethics experts and runs the risk of violating state law, Orange County Supervisor Andrew Do’s chief of staff has been working on his boss’s re-election campaign while continuing to receive a full-time salary from the county.

The chief of staff, Brian Probolsky, has received thousands of dollars in reimbursements from Do’s campaign since July, according to campaign disclosures. And the campaign paid another $3,000, marked as being for campaign consulting, to a company registered to Probolsky.

During this same period, which covers almost three months between July and late September, Probolsky reported full-time work at his county job, which pays about $10,800 per month.

“Whenever you run into a situation like this, you have at least the appearance of impropriety that public resources are being used for personal or political gain,” said Hana Callaghan, director of government ethics at Santa Clara University’s Markkula Center for Applied Ethics.

“It often happens that staff does work on a political campaign, but they absolutely can’t do so on the public’s dime. They can do it on their off hours, however it does raise the question and it does raise the appearance that they’re using taxpayer money to further the political endeavors of their boss.”

Under state law, it is illegal to use public resources, including taxpayer-funded work hours and facilities, for political campaign work. And a memo from the County Counsel’s office lays out strict rules regarding campaign work by county employees.

Non-elected county employees “may not do staff work in support of…candidates for elected office during their normal County work hours, unless the time they spend on such activities is charged to personal leave time,” the County Counsel’s office wrote in the 2011 memo.

County policy also prohibits employees from using “county time, facilities, [or] equipment” for anyone’s “private gain or advantage.”

Reached by phone this week, Probolsky declined to comment. Do, meanwhile, says he has protections in place to make sure Probolsky isn’t using taxpayer resources on his campaign.

“We all are trained not to co-mingle between county business and campaign [activity]. And I’m very strict about that,” Do said.

However, Do acknowledges he has no specific documentation showing that Probolsky’s political work is limited to taking place outside county time.

A Lack of Documentation

During the recent period in which Probolsky was working for the campaign, he reported working consecutive full-time weeks for the county, with the exception of four hours of paid leave split between three days in July.

Do said Probolsky gives more than required at his county job, working far more hours than full-time.

“If you know Brian Probolsky, he’s in the office more than 40 hours per week,” including “nights and weekends,” Do said. “The last person that anybody would want to attack, in terms of hours worked, is Brian Probolsky.”

But what’s important is when Probolsky works and for whom, said government ethics expert Tracy Westen. “You have to draw very clear lines,” he said.

The best way for Probolsky to separate his county work from campaign work is to do only his county job from 9 a.m. to 5 p.m. and campaign work afterwards and on weekends, Westen said.

But Probolsky’s timecards suggest that his county hours are irregular, with many hours missed during workdays that he makes up for on other days and weekends.

There are several weekdays in which Probolsky’s timecards show him working less than a full eight hours for the county, including some half-days. But, instead of taking that time as paid leave, he reported making up for the missed hours by working more than eight hours on a different weekday, or working on a weekend.

If he was taking time off during regular work hours to work on Do’s campaign, but making up the time rather than taking leave, he could be in violation of state law as interpreted in the county’s memo.

If Probolsky even takes a phone call about a campaign issue while he’s in his county office, it’s a problem, Westen said.

To re-assure taxpayers, Probolsky could keep a “very careful time chart” showing which exact hours he’s working for the county and which hours he’s working for the campaign, Westen said. “That would be a clear way to say to the taxpayer that you’re not being cheated.”

Do said no such time chart has been kept.

“That assumes that he runs in and out and does different things all the time,” Do said, adding that Probolsky is physically in the county building 60 hours a week.

Callaghan said a time chart “can actually show when the [campaign] activity took place, and you can show that it wasn’t done on government computers, in government facility, on government phones.”

“I worked for a congressman who had a very hard line between government and politics,” she said. “And it was very clear that if you wanted a job on his staff that you were not to be involved in politics at all.”

Altogether, Do’s re-election campaign reported over $8,000 in payments to Probolsky and a company registered to him. Most of it is reported as reimbursements to Probolsky for campaign expenses like $975 at Enterprise Rent-a-Car, $928 for La Quinta Inn, and $630 in Costco purchases.

There are also two $1,867 reimbursements to Probolsky for “AMC Management,” which appears to be for an apartment lease.

Asked by a reporter if he can assure taxpayers their money isn’t being used for his campaign, Do replied that his office is under the highest level of scrutiny.

“Believe me, they watch us like a hawk…[and] you guys watch me like a hawk,” Do said. “We’re not dealing with a bunch of shy people.”

Prior Problems

Probolsky has been sanctioned before for doing non-county work on county time.

In 2014, Probolsky was caught on tape watching candidates file election paperwork during work hours at the county elections office during the March candidate filing deadline.

He admitted to human resources investigators that he had no business reasons for hanging out at the Registrar of Voters office to watch candidates file for office, according to sources with knowledge of the probe.

Then last year, human resources investigators concluded that Probolsky attended weekday meetings as an elected board member at Moulton Niguel Water District while also on the clock in his job at the county’s Community Resources Department, according to sources close to the county.

The sources also said Probolsky, who had earlier served as a chief of staff to then-Supervisor Pat Bates, threatened the HR investigators with political retribution for their investigation.

As punishment for his actions, Probolsky was suspended without pay for a few days in January 2015. The following month, Do brought him on as his chief of staff.

A long-ago predecessor of Do’s actually went to jail for having county staff work on his campaign.

In 1976, 1st District Supervisor Robert Battin was convicted of misusing public funds after he used county staff, equipment, and facilities for political campaign work.

He ultimately appealed the ruling up to the U.S. Supreme Court, but the conviction was upheld. Battin was sentenced to 30 days in jail and fined $3,500.

Clarification: This story has been updated to reflect that Brian Probolsky’s county timecards don’t show which part of the workday he took off.

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.

  • Cynthia Ward

    Now, normally I will defend people working two jobs, as long as they keep the jobs separate. It is entirely possible to work 40 hours a week in one office and still pick up a part time job, consulting gig, or teaching position one or two nights a week BUT…Supervisor Do hangs himself with his own statement…

    Do said no such time chart has been kept.

    “That assumes that he runs in and out and does different things all the time,” Do said, adding that Probolsky is physically in the county building 60 hours a week.

    Does anyone else read that to mean his staffer is running BOTH the campaign and his Supe office on the same track and NOT running in and out and doing different things at a time? Also how does one work 60 hours a week at County AND run a campaign. Does Do not understand what he just told reporters?

    • David Zenger

      This is because Do knows very well that nobody can disprove his brave assertions – unless somebody succeeds in suing the County to get the garage time card entry data.

      Say, how does Do know that Probolsky is in the building 60 hours a week – unless HE is too? pretty unlikely, isn’t it?

      In 2012 Ian Rudge and I were the only 5th Floor employees any where near 40 hours a week. Nobody else came close. Janet Nguyen’s bag man clocked in at 13 hours a week average, and made $100,000. I believe he is now on Do’s payroll.

      I wouldn’t trust Do for the time of day.

    • Steve W.

      Nothing in this article says Probolsky is running Do’s campaign. It does say most of the campaign payments Probolsky received were expense reimbursements; that’s different than running a campaign. Gerda fails to establish how much time Probolsky spends on the campaign and/ that that work occurs on county time. Shouldn’t you need more than that – some actual evidence – before you hang a man?

      • Steve, here are the first two paragraphs of the article:

        In an arrangement that’s drawing
        questions from ethics experts and runs the risk of violating state law,
        Orange County Supervisor Andrew Do’s chief of staff has been working on
        his boss’s re-election campaign while continuing to receive a full-time
        salary from the county.

        The chief of staff, Brian Probolsky, has
        received thousands of dollars in reimbursements from Do’s campaign since
        July, according to campaign disclosures. And the campaign paid another
        $3,000, marked as being for campaign consulting, to a company registered
        to Probolsky.
        I believe the position of Chief of Staff will indicate he is running Do’s campaign.
        One thing I did not see in the article was what is Probolskies county position?

        • BeeBee.BeeLeaves

          Second paragraph. Chief of staff.

          • Ahh, it confused me, I see he is a tax payer paid Chief of Staff for a member of the board of supervisors, and at the same time is also Chief of Staff of his campaign, Why would this make any questions?

            I have heard this guys name in the VOOC many times before. What was his position before he was Do’s COS?

          • BeeBee.BeeLeaves

            Don’t know. Just know this … they must be busy in that office since they never respond to solution driven ideas, or things I share from other sources that might be of help. Not one thanks, cool, thanks for sharing. Not one reply. Ever. When I worked with an agent that in the 90s was known as the most powerful man in Hollywood, his mantra was to always acknowledge a phone call or an email, even if you have to do a quick 10 second “hey, thanks for this.” left on their voice, or by rmsil, at 3 in the morning because you cant stand the person and don’t want to actually reach them and have to talk to them. He used to say that “No answer is the answer.” and another agent then added a raised middle finger to that. If you did not acknowledge communications, it was a deal breaker. You were then blackballed. I dunno, call me whatever, but if it’s a policy that’s good enough to be used by power players, it should be good enough policy for civil servants. They get paid enough to make the time. No excuse.

          • Steve W.

            Who said he’s chief of staff for the campaign? Local campaigns don’t have a “chief of staff.” Do any of you people have a clue what you’re talking about?

          • BeeBee.BeeLeaves

            Chill out. It just looks like Huma getting paid by the State Department, on taxpayers dime, and doing work, double dipping, for the Cinton Foundation and/or as private consultant. That’s all.

            http://www.judicialwatch.org/document-archive/huma-employment/

        • Steve W.

          Working on a campaign and running a campaign are two very different things.

      • Paul Lucas

        i GUESS YO DIDNT SEE MY COMMENT. ADAM p WAS WITH ANDREW DO EARLIER THIS YEAR AT THE ROV DURING THE FILING DEADLINE FOR THE JUNE PRIMARY. TODD SPITZER WAS ALSO THERE. IT WAS THE DAY AFTER THAT INVESTIGATOR ATTACKED THE DEFENSE ATTORNEY N CAMERA AND STILL GOT AWAY WITH FELONY ASSAULT.

        • BeeBee.BeeLeaves

          Paul is yelling! I hear ya! LOL.

          • Paul Lucas

            Actually thats a mistake had my cap key down on accident lol

  • Jacki Livingston

    You’re joking, right? These people, along with SSA ‘leadership’, have been up to their necks in bed with organized crime, using nursing homes to launder dirty campaign money, and THIS is what they have their panties twisted over? Spritzer, Nelson, Do and Nguyen are guilty of racketeering, embezzlement , conspiracy and assisting in the abuse, rape and murder of nursing home patients, but this is what gets inches here. My God, the incompetence just boggles the mind.v

  • Steve W.

    Just to recap:

    There’s no evidence Probolsky broke any laws.

    There’s no evidence Probolsky isn’t doing his county job.

    He’s working a lot of hours.

    Some “experts” spin some speculative, unproven scenarios.

    And that’s enough for Nick Gerda to dump mud on Probolsky?

    What a total horse-s–t story.

    • I have a suspicion Steve W. is a sock puppet account for Do or Probolsky.

      • Steve W.

        I’m not. It’s just a horse-s–t article – it doesn’t matter that it’s about Probolsky. Gerda blows a lot of smoke, but there’s no fire.

  • LFOldTimer

    Just some friendly advice.

    If the Supervisors endorse a council person in your city – run in the opposite direction as fast as your hooves will carry you.

    Chances are very good that person is not working for you.

  • Mike Tardif

    This is a really stupid article – nothing there.

  • OCservant_Leader

    Bullseye!

    This is ground zero for how the organized crime family stays in power.

    They use tax dollars to pay all their personnel under the guise of “public service”.

    If there is a REAL investigation going on – I can testify to what I saw on a daily basis for almost two decades. I’ve seen a lot. Many campaigns. Yes, during 8-5 at the County where all the resources are.

    After years of frustration of all positions going to operatives – and we couldn’t get “slots” for actual “workers” to do – ya know – work to meet our Regulations in providing services to the public…I started to pay closer attention and collect evidence…Because I knew one day – they would get caught.

    Folks -County government is the OC incubator for all GOP campaigns…not just BOS- every City Council, School Board, Water District and even the Tea Party.

    I know why OC is the “Red County”- jokes on you taxpayers.

  • Roderick Powell

    Janet Nguyen, Andrew Do…the very definition of dishonesty. Dare I say send them back to Vietnam. Any Viet who votes for this type of slimeball JUST because of their ethnicity has shown that they are either voting ignorantly or they are voting knowing that they are slimeballs and that many better Viet candidates are out there…but “for now” let’s “get one of our own in office”….you are only hurting yourself and your race relations in the U.S. I suggest finding better than J. Nguyen and A. Do. and getting truthful with yourself.

  • Paul Lucas

    I ran into Todd Spitzer Andrew Dio and Brian P at the ROV when filing for 2016 elections in June this year. It was the day after that investigator attacked that Attorney in the hallway after he got his client anew trial due to cheating by the DA. I politley said hello and they both didnt recognize me at first since its been a while. Then as I introduced myself thee both looked at me like they saw a ghost. I would assume the ROV surveliance tapes has that interaction available.

  • Rivett

    ““The last person that anybody would want to attack, in terms of hours worked, is Brian Probolsky.”

    Maybe, but there are plenty of other reasons to attack that slimeball.

    • David Zenger

      I still remember fondly the time The Probe tried to get himself appointed Performance Auditor after Danley became head of HR.

      He made the rounds on the 5th Floor telling each of the Supervisors that he already had three votes. That didn’t go over so well.

  • David Zenger

    “…adding that Probolsky is physically in the county building 60 hours a week.”

    Under normal circumstances it would be super-easy to check on the veracity of that statement. The basement entry gate badge reader tracks everybody’s coming and goings. Of course County Counsel long ago deemed this some sort of security issue so Do must know nobody can prove him wrong.

  • David Zenger

    And at the same time Do has more than likely violated County policy on procurement and actual misuse of public money by hiring what sure looks like a personal/campaign PR “consultant.”

    http://ocpoliticsblog.com/2016/10/19/supervisor-do-caught-using-county-money-to-pay-for-his-own-promotion/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+OcPolitics+%28OC+Politics%29

    Shirley Grindle can fill us in on that one.

    It’s Janet Nguyen, redux. What is it with these people?

    • Shirley L. Grindle

      Reply to David Zenger — read Bill Mitchell and my letter to the Board of Supervisors — it is posted on Pedroza’s NewSantaAna blog site. Probably will soon be on voiceofoc.