The race for sheriff of Fairfax County typically doesn’t attract much attention because the job involves unglamorous matters such as running the county jail, overseeing court security and serving civil papers. The sheriff isn’t the police chief in Fairfax or most other counties in NoVa, except Loudoun.
But the Fairfax Republican Party is trying to make things interesting. It has targeted incumbent Democratic Sheriff Stan Barry with the claim that he is unfairly manipulating the county retirement system, and doesn’t deserve another term. I sat down with Barry Wednesday, armed with a newly obtained internal memo from 2009 that says the sheriff declared then that he planned to retire in 2012, yet still serve. (Huh?) I asked him to explain the situation in terms even a moron reporter could understand. It’s fairly clear he hasn’t broken any rules or laws. Republicans say it’s still unethical. You decide.
The story comes down to this: In March 2009, Barry entered the county’s deferred retirement program, which means he was officially retired. Fairfax employees can work for three more years, even though retired, continue to collect a salary, and then collect three years worth of retirement payments in a lump sum at the end. One cannot change his or her mind once in the program — you contract to leave after three years.
Barry said Wednesday that in 2009 he hadn’t decided whether he would run again. But he figured if he did run, he would retire, collect his lump sum and then serve as sheriff for no salary. Zero dollars. He thought this would be well received by everyone: a sheriff for free, living off his retirement benefits.
But he said county attorney David Bobzien looked into it last spring and told him he couldn’t do it. The state would continue to pay him, as a constitutional officer (not a county employee), and state law holds that no deputy’s salary can be more than 90 percent of the sheriff’s. And 90 percent of zero is zero. Also, the county cannot prevent someone from running for public office, which it would be doing if it forced Barry into retirement.
So if Barry decided to run for a fourth term, he would have to collect his three-year lump sum and place it in a separate untouchable fund, he said he was advised. The county would no longer contribute to his retirement fund and he would not collect any more of his retirement fund until he truly retired, Barry said the county attorney told him.
And that is what Barry is now doing.
Bobzien wouldn’t confirm that story, with a county spokeswoman saying Bobzien cannot discuss attorney-client conversations.
The matter was raised at a Board of Supervisors meeting in June, with some supervisors saying the Deferred Retirement Option Program, or DROP, wasn’t intended for elected officials. In the meeting, Bobzien called the situation “an anomaly.” In late September, the Fairfax County Republican Committee edited together a video of that meeting and released it, complete with dramatic music that should probably be played at all Fairfax board meetings. Here it is:
Barry said that after the heated exchanges in the video above, Bobzien reconvened the board in closed session, explained Barry’s situation, and the matter was dropped.
County officials acknowledged there is no rule or ordinance against elected officials entering the DROP. And for someone like Barry, who was a deputy sheriff for nearly 20 years before his election in 1999, it would seem to remove an option for public servants who years later run for the top job. Fairfax prosecutor Ray Morrogh is in the same boat now.
Barry’s Republican opponent is Bill Cooper, a former lieutenant in the Fairfax sheriff’s office who retired in March after 23 years. He did not enter DROP. For him, “this boils down to an integrity issue.
“Take the money out of it,” Cooper continued. “Take the legality out of it. Take the politics out of it. Stan Barry entered into an agreement with Fairfax County’s citizens and by not keeping that agreement, I think he’s violated the public trust.”
In minutes of a sheriff’s office meeting in February 2009, distributed throughout the department and provided to me this week, the following was reported: “While the Sheriff has entered the DROP program, he does not intend to leave in three years. He plans to run for office again and will accept the position if elected but he would not be eligible to receive his County salary.”
Barry said those notes are not totally accurate. He said he did not state uncategorically he would run again. “I’ve been very open,” the sheriff said. “Yes I’m in DROP. If I run again, I will retire and not take a salary. Many times, I’ve said I’m keeping my options open. If I do run again, I’ll do it for no salary.”
But Paul Maltagliati, Barry’s former chief deputy, said the sheriff “basically told everybody he was going to run. He intended to run. He didn’t mince words. He didn’t say he’d probably run.”
Maltagliati, who said he is not a supporter of Cooper, added, “The timing of it is very convenient. The way he’s going about it benefits him greatly.”
Barry said he didn’t decide until this spring that he would run again. He said he thought one of his majors would run, but when he didn’t, and ”when I saw who was running for sheriff, I really didn’t think that him [Cooper] being elected sheriff would be in the best interests of the sheriff’s office or the county. That’s when I sought the legal advice of the county attorney.”
But virtually every other county employee must fully retire after three years in DROP, and can’t return to the same “appointing authority.” Barry said Bobzien’s research determined “I don’t have an appointing authority” because he is an elected, constitutional officer. “In their legal opinion, the citizens are the appointing authority,” Barry said. Also, Barry is paid nearly all of his $152,000 salary by the state, and “there’s no real way the county can stop paying the sheriff.” Plus, state law requires him to make 10 percent more than his highest deputy, so Bobzien ruled that zero salary was not feasible.
Barry said he will not get any financial benefit. He said the three-year lump sum DROP payment will be about $340,000, but if he is reelected that would be moved from a fund where the county guarantees 5 percent annual interest to one with no guarantees. He said he cannot touch it until he leaves the county for good. He will not collect his pension until he leaves. If he is reelected, he said he will exit DROP on Jan. 1.
Republicans remain outraged. “This guy is unethical,” said Anthony Bedell. “I find all of that to show an incredible lack of judgment. He seems to have slithered through these loopholes and he didn’t think that anyone would know.”
Maltagliati said, “Stan signed a contract that he never intended to abide by. It is as simple as that.”
The question of whether Barry has done a good job in a dozen years as sheriff is largely overlooked. Fairfax Board Chairwoman Sharon Bulova, a fellow Democrat, said the jail was safe, well run and cost effective, as are the sheriff’s other functions.
“He is not double dipping. He’s not taking some kind of unfair advantage,” she said. Bulova said Barry approached her about running again and then serving for no salary. “I told him it would be just as confusing” as the current proposed setup. “I don’t know if that would’ve resolved anything.”
Bulova said the question of whether elected officials are eligible for DROP has never been resolved, and that she has worked in the county for nearly 30 years. She said she wouldn’t enter DROP herself. “But I’m happy to have him do it,” she said of Barry. “I’m glad he decided to run again.”