Sedgwick County District Attorney Nola Foulston is giving out $106,500 in year-end bonuses, a practice that doesn’t happen in any other county office.
Foulston bristled at the idea that the performance-based incentives are bonuses. She called the incentives “deferred compensation” that staff earn for above-and-beyond work.
Staff in her office also are eligible for performance-based raises through the county’s regular 2.5 percent raise pool that commissioners approved last month.
Foulston is paying incentives ranging from $500 to $3,000 this year to 71 professional and executive staff members.
Records obtained by The Eagle show 38 employees are getting raises of $1,000 to $5,000 next year. Foulston said some of those raises are because of promotions or additional responsibilities.
The office has 119 employees.
Marc Bennett, a deputy district attorney elected to take over Foulston’s office in January, said he will re-evaluate the system of performance-based incentives as well as other spending in the office.
“I’ve got to be a good steward of public funds,” he said. “That is not lost on me at all.”
He is receiving a $3,000 bonus from Foulston.
Foulston has been awarding performance-based incentives since 2001 in addition to regular county raises, records show.
She notes that she annually returns some unspent funds to the county and pointed out that lawyers in her office could earn more working in a private law firm.
No other department at the county gives such incentives, budget director David Miller said.
That there are two pots of money available to reward Foulston’s staff has caused some resentment among other county employees, a commissioner said.
“There’s really nothing that we as commissioners can do about it, but I do believe it’s a source of consternation among other county employees,” said Commissioner Richard Ranzau.
He did not comment further, noting that Foulston, under state law, can use her office’s budget any way she sees fit.
Last year, Foulston’s office paid $81,750 in performance-based incentives and $46,000 in duty service pay, which is special pay for signing up to be on call a week at a time. In 2010, the office did not pay any incentives and paid $38,000 in duty pay.
In 2009, it paid $14,950 in performance-based incentives and $40,650 in duty pay, Foulston said.
In 2001, when Foulston started the system, the office gave out $54,250 in incentives and $12,475 in duty service pay.
Rewarding good work
The district attorney’s office receives taxpayer dollars from the county each year. For next year, its budget is $9,595,302.
Foulston said she regularly has used salary savings — money made available when employees leave and are not replaced — to reward exceptional employees at the end of the year. Employees must meet goals to receive the incentives.
“When an amount of money is allocated to the district attorney, the DA has the unfettered discretion to use those funds for whatever legitimate purposes for the office,” she said. “We give them a salary at the beginning of the year. They have the ability to earn deferred compensation based on their work, their precedent, any changes in occupation. The bottom line is, we are allocated a sum of funds. We monitor all of our performance on our professional staff. We look at their work, responsibilities, their court cases. They are evaluated twice a year and meet weekly with their supervisors. It’s an intense program of oversight.”
Foulston said “we work with the county” to use taxpayer money wisely.
“There’s not very much movement in enlarging our budget,” Foulston said.
Next year’s budget, for example, is 1 percent less than it was this year.
“We set their salaries at the beginning of the year and see if they have met expectations or if they have exceeded expectations,” Foulston explained.
She said that her office holds onto “money that we save throughout the year by reducing expenditures, by salary savings from people who might have left and we didn’t fill their positions. It functions as our deferred compensation. At the end of the year, we look at how much money was saved.”
Those employees whose performance merits reward then get a share of that money, Foulston said.
“The amounts vary according to an individual’s work and how they’re doing,” Foulston said. “There is no prohibition against us utilizing this fund.”
Foulston said that when she became district attorney in 1988, “it was the county that really managed all the finances of the DA’s office. When I came into office, I said, ‘This is a concern that I have. We should be reviewing all of our own finances because the statute says the DA … is the person in charge of the (budget) allocation of the office.’ ”
Foulston emphasized that her office regularly does not spend all of its budget, which means that money goes back into the general fund to support future years’ expenses. In 2009, Foulston’s office didn’t spend $317,554 of its budget. In 2010, it didn’t spend $78,558, and last year, it didn’t spend $363,788.
Foulston said she also didn’t award all of her 2.5 percent raise pool.
Outgoing Sheriff Robert Hinshaw said his office does not use unexpended money “for bonuses or raises.”
“What we do is if we have, for lack of a better expression, big-ticket items, we’ll go to county finance and even though it’s my budget, we’ll say, we want to buy new cameras for our forensic investigators,” Hinshaw said. “We don’t give back 100 percent. But we do give back the vast majority of it.”
The sheriff’s office has projected it won’t use 5.5 percent, or $2.66 million, of its budget for this year. Miller sees that not as money the sheriff’s office — or any county department, for that matter — is giving back to the general fund but as “unexpended budget authority.”
Hinshaw said he would prefer to use unspent money for equipment or training. Using it for performance incentives, he said, could create an expectation.
“How are you going to keep that constant?” he asked. “Next year you might not have enough. In these tough economic times, those are still tax dollars and they need to go back to the general fund.”
What other counties do
Johnson County District Attorney Stephen Howe said his employees are eligible for performance-based raises like other county employees.
That county’s pool also is 2.5 percent, and raises up to 4 percent are allowed.
“We conform with the county parameters on what we can give on raises,” Howe said. “Each office has to average out at 2.5 percent based on performance measures. We have discretion to give bonuses of up to $1,000, but it’s a very limited number are given yearly.”
He said he has awarded fewer than three since being elected in 2008. All county employees are eligible for the bonuses, Howe said, not just staff in his office.
Asked about Sedgwick County’s system, Howe said, “I think every situation is different. It’s awfully hard to compare apples to apples between the two jurisdictions. It’s hard for me to be an armchair quarterback.”
Like Foulston, Howe said it can be difficult for district attorney’s offices to compete on salaries with private law offices.
“One of the things that we always try to do is have a decent compensation package to help foster careerism,” he said. “We feel it’s very important to keep good people here because they provide a great service to the community and are keeping the community safe. You can never compete with the private sector, but you want to make it so good people can stay in a government office and do really good work in their career.”
Starting attorneys in his office earn $54,700. His chief deputy district attorney earns $138,000, he said. Records show the lowest pay for current attorneys in the Sedgwick County office next year will be $53,000. Foulston’s chief deputy attorney, Kim Parker, earns $115,000 and will not receive a raise next year, records show.
Lee McGowan, chief of staff for the Shawnee County District Attorney’s Office, said at that office, “the DA goes to the county commission and requests a budget, which would include a line item for salaries. He can request an increase in that line item, to add staff but also to give raises. (The commissioners) either say ‘yay’ or ‘nay.’ ” They almost always say no, he said.
Starting attorneys make about $48,000 a year, McGowan said.
Miller, the budget director, said Foulston’s employees are county employees, and “we budget for their personnel costs just like any other department. If there’s a budget compensation pool, we budget for the compensation pool. The DA and other elected officials are given more latitude than other department heads that report to the manager are given.”
The biggest bump in salary for next year among prosecutors is $5,000. That employee’s salary is increasing from $85,000 to $90,000, a 5.8 percent increase, which is higher than the top raise all other county employees can receive. Other departments can award raises of up to 4 percent.
Two employees in Foulston’s office will receive raises of $4,000 each. Twelve will be getting $3,000 more a year. Seventeen are receiving raises of $2,000. One will receive a $1,500 raise. Five employees in the district attorney’s office are receiving raises of $1,000.
The employee with the highest raise — $5,000 — also is receiving one of the highest incentives, $3,000.
Pay for duty service
In addition to the county’s raise pool and the performance-based incentives, Sedgwick County prosecutors can get “duty service pay” for volunteering to be on call.
Those who sign up, for a week at a time, get extra pay for going out on calls in the middle of the night and visiting the jail to set bond for defendants.
Duty pay allotments paid this year to individual employees ranged from $700 to $3,950. The office paid $48,975 this year in duty pay. Employees are keen to sign up for duty service, Foulston said.
Attorney duty service is paid by the week. The primary person on call must have experience working on homicides and is paid $350 a week. Backup attorneys, who handle drug and other cases or may handle homicides if the primary person already is busy, also get $350 a week. Jail duty is paid at $125 a week. Foulston said the duty pay helps offset the cost of staff using their own cars to travel to cases.
The district attorney’s offices in Johnson and Shawnee counties do not pay for duty service.
Foulston noted that district attorney’s offices are unlike other county departments.
“My staff does not get paid overtime,” Foulston said. “They don’t have a 40-hour work week. It’s a completely different employment situation, and that is why we have a different plan that is more suitable to the running of a law office. I don’t know any other employees in the county that are required to do the kind of work that we do, other than emergency service personnel, and they are paid for that. When the clerk of the district court has to keep their people overnight, they get overtime. When my staff stays overnight, they get a salary.”
Bennett said he didn’t get duty pay when he became a prosecutor. He also said he knows other jurisdictions without appellate divisions that give attorneys $500 to write briefs. That is a form of special pay not awarded in Sedgwick County because it has an appellate division, he said.
Bennett said he is prepared to review “all these types of things. I’m just a deputy DA right now.”
Commissioner Dave Unruh said he knew the district attorney’s office gave out raises and performance incentives, but he said he hasn’t given it much thought because the commission doesn’t control that budget.
However, he said “in this particular environment, it might be considered by some to be more than enough. It’s kind of doubling up on your potential performance pay.”