Metropolitan News-Enterprise


Tuesday, October 24, 2006


Page 1


Court of Appeals Rejects Ex-Sheriff’s Bid to Have County Pay His Legal Fees in False-Claims Case


By a MetNews Staff Writer


The former sheriff of Kern County, who won a lawsuit in which the county accused him of having illegally paid overtime to top-ranking deputies, is not entitled to recover his legal fees from the county, the Fifth District Court of Appeal has ruled.

The court left open the possibility, however, that former Sheriff Carl Sparks can collect the money under urgency legislation signed by the governor last month, an issue not litigated in the trial court.

The county sued Sparks—who stepped down in 2002 after 12 years in office—two years ago, claiming that he illegally paid $39,000 in overtime to several commanders. Pleading causes of action for false claims and misrepresentation, the county sought to recover the money and to avoid having to treat the amounts as earnings in calculating the commanders’ future pension benefits.

Sparks responded with a petition for writ of mandate, seeking to have the county fund his defense under Government Code Sec. 31000.6(a), which provides that upon the sheriff’s request, “the board of supervisors shall contract with and employ legal counsel to assist...the sheriff in the performance of his or her duties in any case where the county counsel...would have a conflict of interest.”

The county demurred, citing Sec. 31000.6(b), which provides that if the supervisors reject the sheriff’s request, the sheriff’s remedy is to initiate an ex parte proceeding before the presiding judge of the superior court.

Kern Superior Court Judge Lee P. Felice sustained the demurrer, ruling that the statutory remedy is exclusive.

The Court of Appeal, however, affirmed on a different ground, that Sec. 31000.6(a), prior to last month’s urgency legislation, did not authorize a county to provide counsel to a former sheriff.

Justice Herbert Levy, in an unpublished opinion Friday, said the plain language of the statute makes clear that its purpose is to authorize the hiring of outside counsel to assist the sheriff in performing his or her duties while in office.

The new legislation, the justice went on to explain, creates Sec. 31000.6(g), which provides for outside counsel “after an assessor or sheriff leaves office if the matter giving rise to the need for independent legal counsel was within the scope of the duties of the assessor or sheriff while in office.”

The Court of Appeal, however, cannot rule on the effect of the new legislation at this time because the issue requires determination of factual questions that were not ruled on by the trial court, including whether Sparks was acting within his authority when he authorized the extra pay, Levy said.

Also left unresolved were the questions of whether the urgency measure is constitutional and whether it can be applied retroactively.

The county is separately appealing another judge’s order dismissing its suit against Sparks, who last spring rejected the county’s offer to drop the appeal if the former sheriff agreed to bear his own legal expenses.

The case is Sparks v. Kern County Board of Supervisors (County of Kern), F049188.


Copyright 2006, Metropolitan News Company