Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, November 21, 1995                   TAG: 9511210107
SECTION: VIRGINIA                    PAGE: C-1   EDITION: METRO 
SOURCE: JAN VERTEFEUILLE STAFF WRITER
DATELINE:                                 LENGTH: Medium

RETIRED DOG COULD GET HEFTY 401(K9)

Testimony went something like this:

Lawyer: "Did you know the black Lab, Gypsy?"

Witness: "Yes, I did."

Lawyer: "And how did you come to know Gypsy?"

Elderly and arthritic now, Gypsy is no longer on active duty. But her training, feeding and care as a tracking dog for the Sheriff's Office were under scrutiny as part of a lawsuit between her trainer and Sheriff Carl Wells.

The sheriff is liable for overtime care for Gypsy, U.S. District Judge Jackson Kiser ruled in August, because Wells' attorney was late filing a motion opposing her owner's claim for back pay.

Retired Deputy Douglas Mayhew is seeking about $35,000 in overtime pay for caring for his dog, Gypsy. A bench trial Monday was to determine how much back pay Mayhew is eligible for under the statute of limitations. Kiser gave lawyers two weeks to submit findings of fact before he rules.

But the judge said Monday he was concerned that Mayhew didn't keep better records of the time he spent caring for the dog and that he hadn't confronted the sheriff about his claim for compensation during his time on the force.

Mayhew's attorney, Terry Grimes, said Mayhew didn't realize he was entitled to compensation for the time he spent with the dog until a Spotsylvania County deputy won a similar lawsuit in 1992. And, while he could have kept better track of his training time, Grimes said, it isn't practical to expect someone to itemize daily feedings and grooming. Mayhew estimates he spent 14 hours a week caring for Gypsy.

Grimes said the evidence in Mayhew's case is "identical" to the evidence in the Spotsylvania deputy's successful suit.

Wells' attorney, Walter Heslep, argued that Mayhew was compensated for the time he spent training Gypsy during regular shifts and that the sheriff's office paid for food, veterinary care and training supplies. Mayhew never asked the sheriff to pay for his time at home with the dog.

"If he put the time down [on the department's computerized log] and claimed it from the outset, he would have gotten it," Wells testified. "It would have been no different from ... being on the road [patrolling]. He's gone now, and it was never claimed and he never asked for it."

Wells said the state compensation board does not provide money for overtime pay, so Mayhew would have been entitled only to compensatory time off for any extra hours he put in.

Wells earlier had argued that Gypsy was Mayhew's personal pet and that the deputy had volunteered the dog's services to the county when it needed help tracking someone. Gypsy was used to track escaped inmates, criminals and missing persons.

Mayhew sued the sheriff in July 1994 and retired in January 1995 on disability. In November 1993, Mayhew was demoted from the county's Drug Abuse Resistance Education officer to jailer. He was one of three deputies suspended for 60 days and then demoted for drinking while part of an undercover narcotics unit.

Wells testified Monday that the three deputies not only drank during an undercover assignment at Smith Mountain Lake, but also consumed alcohol while "finishing up some reports" at the Sheriff's Office.