Thursday, July 27, 2006
D.A. Rice’s Many Errors
Nassau County District Attorney Kathleen Rice had a choice, and she made a poor one. She chose to force the Office’s dozen part-time Assistant District Attorneys—all women, almost all mothers—to “choose” between their part-time schedules and their jobs. At last count, two had resigned, but first they brought the issue to the attention of the Women’s Bar Association of the State of New York (“WBASNY”).
WBASNY’s President Elaine Avery and local chapter president Helen Voutsinas met with D.A. Rice—the first woman ever elected to the office of District Attorney in Nassau County—to urge her to reconsider the policy, which is, according to Ms. Avery, “a decree ‘that sets us back 30 years’ on the issue of balancing a law career with family-friendly life choices.” (Robin Finn, New York Times, “Bad Example? Anti-Family? New-Wave D.A. Calls It Business”, July 22, 2006.) D.A. Rice, however, wouldn’t budge an inch, and so the bad press began. On July 9, 2006, a New York Times editorial, “A Woman’s Place,” criticized Rice’s policy, an article in the July 11th Newsday reported “Rice gets a scolding” by WBASNY.
In an article for Newsday, “Balancing justice against equality: Needs of working parents shouldn't outweigh the duty of Nassau County to protect the community” (July 10, 2006), D.A. Rice defended her position: “Simply put, criminals do not work part time; neither should prosecutors involved in investigations, trials or appeals.” D.A. Rice blames the County headcount system that limits the number of ADAs she can hire. She maintains that she is not “anti-family”—telling the New York Times that one ADA (of the 170 she employs) leaves every Thursday at 4 p.m. to coach Little League – or “anti-woman” pointing to the five women she has promoted to leadership positions since taking office six months ago. Needless to say, none of those women were working part-time.
And although D.A. Rice claims to be committed to “family-friendly policies for everyone,” she apparently doesn’t believe that any meaningful alternative work arrangements are consistent with the Office's mission. Rather than investigating ways to allow ADAs to work in the more prestigious, skill- and career-building departments—i.e., litigation, appeals, investigations—D.A. Rice instead is proposing what will essentially be a dead end, mommy track for part-timers. She told the Times that she “hopes to establish an Early Case Assessment Bureau by year’s end that will offer part-time positions.” ECAB—as it is known—is essentially the intake unit and, in some counties, is the means of building an ADA’s caseload. For example, in New York County, ADAs perform initial case assessments as police officers bring in arrest reports and witness statements to ECAB, determine the appropriate charges if any, and then prosecute the cases they “caught” during their ECAB shift. Presumably, if part-timers in Nassau County worked ECAB, they would not prosecute those cases, but would rather pass them along to full-time colleagues. Such limited positions would not allow part-time ADAs to continue developing professionally or to build careers as trial or appellate attorneys.
It seems that D.A. Rice has taken a very odd position as the leading female prosecutor in Long Island, NY, particularly because over the last twenty to thirty years, government attorneys have pioneered and even encouraged alternative work arrangements in the legal workplace. If federal and local prosecutor’s offices—including the neighboring Suffolk County D.A.’s office, where job-sharing for litigators has been working and another job-share position is beginning —can make part-time arrangements work, (see, e.g., Michael Scholl, New York Law Journal, "Under Fire, DA Defends Decision to Oust Female Part-Timers," July 13, 2006), why is it that D.A. Rice believed she had no other alternative than to demand that a dozen part-timers come back to work full-time or not at all?
What should D.A. Rice have done when she believed she needed more attorneys to prosecute crime more aggressively and found herself confronted with a an archaic system that counted part-time ADAs as if they worked full-time schedules?
D.A. Rice had a number of options. First of all, she is not the first administrator to be faced with a headcount system of assigning personnel (i.e., a department is allotted x number of warm bodies). PAR found a number of corporate law departments that faced similar obstacles to alternative work schedules when it did its Corporate Counsel study. Rather than eliminating all part-time positions, D.A. Rice could have advocated for her experienced, knowledgeable, and talented part-time litigators and shown the County that its headcount system is archaic and arguably has a disparate impact on women. She could have suggested to the County that it follow one of PAR's best practices recommendations and switch to a full-time equivalent system of assigning personnel (e.g., a part-time attorney would count for only a fraction of a worker, allowing the D.A. to hire additional attorneys). She could have enlisted the aid and support of the various women’s bar associations to apply their collective pressure on the County to change the mandate, but she did not.
Second, D.A. Rice could have asked the part-timers themselves to try to come up with other viable work day schedules – i.e., one where their days did not end at 2 pm (reportedly). She could have begun a dialogue with them, and asked them to investigate and propose alternative work arrangements that would better meet the needs of the Office, including, but not limited to, job-sharing proposals.
Finally, if D.A. Rice or the ADAs could not agree upon a viable reduced hours program, she could have worked with work-life consultants to make recommendations as to alternative work arrangements that might work better than the part-time arrangements that were being employed in her Office. D.A. Rice has reported that the part-timers were resented by their full-time counterparts, and in PAR’s experience, that’s a red flag that the part-time program (or former program) needs to be reorganized to be equitable and viable. For example, when only mothers are allowed to work reduced schedules, a part-time program is sure to draw fire from non-parents and from those who would like to limit the part-time program to an artificially finite period of time. (Some comments were made in the press that not all of these part-time ADAs were mothers of young children, evidencing an assumption that older children do not need as much parental attention as a toddler. Have these folks ever heard of drugs, smoking, sex, teen depression, teen suicide, college applications, teen rebellion generally? But that’s a topic for another blog.) When an us-versus-them situation is set up by the office, part-timers will continue to be stigmatized and ghettoized (i.e., placed in dead end career paths) by supervisors and colleagues who are working full-time.
Unlike traditional part-time programs that often create resentment among the full-timers who may be unfairly put upon, and a sense of being devalued among the part-timers who are stigmatized and prohibited from developing professionally, a “balanced hours” approach, such as PAR’s model, takes into account and balances the business needs of the employer—here, the Office and its constituents, the taxpayers of Nassau County—with the individual attorneys’ needs for work-life balance regardless of their gender or the reason for requesting a reduced schedule.
As the District Attorney, D.A. Rice not only has a responsibility to the taxpayers of Nassau County, but like any managing partner, also has the responsibility to her employees. If she wants to keep and to continue attracting talented attorneys (a benefit to her constituents), she will have to do more than promote a “few good women” to top positions. She will have to find viable solutions to allow her ADAs to have greater work-life balance when and if they need or desire it. D.A. Rice must set the tone from the top, and right now, the clear message she’s sending is that it isn’t worth her time to investigate viable, career-enhancing solutions for attorneys who cannot work full-time whatever the reason. I certainly hope that D.A. Rice—who is currently single and childless—doesn’t ever experience a family crisis, a long-term illness of a parent or significant other, or otherwise need some flexibility to achieve work-life balance during her career.
So far D.A. Rice has chosen to take her Office further into the dark ages rather than to demand that the County examine its outdated mandate and move forward into the 21st century. Had she done the latter, she would have had WBASNY and the various women’s committees and sections of the other bar associations applauding her, rather than at odds with her today. PAR agrees with WBASNY and would urge D.A. Rice to emerge from the dark ages and see the light—there are viable, career-building alternative work schedules that would be consistent with the Office’s mission. Prohibiting all part-time or limiting part-timers to ECAB is not part of the solution and will not further women in the law no matter how many individual women are promoted.
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