Metropolitan News-Enterprise


Friday, March 30, 2007


Page 1


Court of Appeal Revives Suit Over Sheriff’s Approval of Extra Pay




A sheriff who illegally authorizes payment of premium pay to a top deputy may be held personally liable to the county, the Fifth District Court of Appeal has ruled.

In a March 2 opinion, certified yesterday for publication, the court reinstated a False Claims Act cause of action against former Kern County Sheriff Carl Sparks. The panel did, however, agree with Kern Superior Court Judge James M. Stuart that Sparks is immune from the county’s claim for negligent misrepresentation.

The county sued Sparks—who did not seek re-election in 2002 after 12 years in office—three years ago, claiming that he illegally paid $39,000 in premiums to several commanders. The payments were stopped by current Sheriff Mack Wimbish after he took office in January 2003.

The payments were for service in specialized units of the department. County officials concluded that commanders were unauthorized to receive them because premium pay is only authorized under collective bargaining agreements negotiated with the union representing lower-level deputies, and commanders are not members of that bargaining unit.

No Board Approval

Commander compensation is determined by the Board of Supervisors, which voted to sue the sheriff. The county contended in its complaint that Sparks falsely certified payroll documents indicating that the extra pay was properly authorized, when the board never gave any such approval.

The county is seeking to recover the money and to avoid having to treat the amounts as earnings in calculating the commanders’ future pension benefits.

Sparks contends that he believed he had the authority to authorize the extra pay based on group lectures given by an attorney for the California State Sheriff’s Association, and a 1994 attorney general’s opinion, regarding a sheriff’s discretionary authority over money allocated to his department.

      The county responded that Sparks never requested a formal legal opinion on the scope of his authority in the matter, that the attorney general opinion did not say that a sheriff can spend budgeted funds for an unauthorized purpose, and that the county counsel had informally told him that he should ask the board to approve the premium pay.

‘Knowingly’ False Claims

Stuart declared a nonsuit at the close of the county’s case-in-chief. But Justice Herbert Levy, writing for the Court of Appeal, said the trial judge interpreted the FCA too narrowly and that the county presented a prima facie case that Sparks “knowingly” presented false claims to the county.

He explained:

“Sparks formed his own erroneous conclusion regarding the propriety of premium pay for commanders.  Although that conduct in itself would not support a verdict in the County’s favor, Sparks thereafter refused to change his position despite receiving contrary advice from county counsel on at least two occasions.  As noted above, Sparks was obligated to follow county counsel’s recommendations.  Thus, when Sparks authorized premium pay and certified the payrolls without Board approval after receiving county counsel’s input, a reasonable jury could find that he exhibited a ‘reckless disregard of the truth.’”

The case is County of Kern v. Sparks, F050440.


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