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)

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.