Wednesday, January 7, 2015
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County Must Pay Ex-Sheriff’s Costs in Dispute With DA—Court
By KENNETH OFGANG, Staff Writer
A northern California county must pay legal costs incurred by its former sheriff in connection with his ongoing dispute with the county’s district attorney, the First District Court of Appeal has ruled.
Div. Three yesterday ordered that Presiding Justice William McGuiness’ Dec. 19 opinion, holding that former Lake County Sheriff Francisco “Frank” Rivero is entitled to reimbursement of legal expenses incurred in his dispute with District Attorney Donald Anderson, be certified for publication.
Rivero feuded with Anderson and the county Board of Supervisors almost from the day he took office following the 2010 elections, according to media reports. Rivero, who beat a 16-year incumbent for the job, but was handily defeated when he ran for reelection last year, has claimed that the county is one of the most corrupt places in the state and that public officials there have long tolerated the corruption.
Rivero, a former San Francisco officer, was working as a Lake County deputy sheriff in 2008 when he shot at a man who allegedly was holding a can of pepper spray. The then-district attorney concluded there was no wrongdoing on Rivero’s part, but Anderson decided to reopen the investigation in 2011.
Public Report
After Rivero lost a court bid to block Anderson from releasing it, the district attorney made public his report, declaring that Rivero had given conflicting accounts of the incident and had violated department policy. Anderson also announced that in the future, should Rivero be called as a witness in any criminal case, prosecutors would be required by Brady v. Maryland to disclose that the sheriff had lied to investigators.
Rivero said the announcement undermined his effectiveness as sheriff, and asked the county counsel for legal assistance in obtaining a determination that he had not engaged in the misconduct alleged by the district attorney. The county counsel declared a conflict of interest and asked that the board allow Rivero to retain outside counsel at county expense.
The board, which subsequently voted unanimously to request Rivero’s resignation, rejected county counsel’s recommendation. Rivero then petitioned the Lake Superior Court for a writ of mandate directing the board to provide him with independent counsel.
Trial Court Order
Judge Richard J. Henderson granted relief in part, ordering that the county employ outside counsel for the purpose of seeking the district attorney’s reconsideration of the announcement, but not for litigation purposes. Henderson subsequently ruled that the county’s obligation ended when Anderson made a final determination that Rivero be “Brady-listed.”
Rivero retained the public-sector law firm of Jones & Mayer, which represents the California State Sheriffs Association, to appeal Henderson’s ruling, which McGuiness said was inconsistent with Government Code §31000.6. The statute provides that a county must retain counsel on behalf of its sheriff or assessor “in any case where the county counsel or the district attorney would have a conflict of interest in representing the assessor or the sheriff,” unless it is possible to erect an “ethical wall” that would permit the district attorney or county counsel to provide such representation.
The jurist wrote:
“We agree with Rivero that, once the court has made the necessary findings supporting the county’s duty to provide independent counsel for the assessor or sheriff, the court generally cannot place limitations on the manner in which independent counsel carries out its representation, except to define the issue or matter that is the subject of the representation. The plain language of section 31000.6, subdivision (a) imposes a mandatory duty upon the board of supervisors to provide independent counsel for the assessor or sheriff with respect to a dispute bearing upon the public official’s performance of his or her official duties. We discern nothing in the language of section 31000.6 that authorizes the board of supervisors or a court to limit legal tactics or actions that might be reasonably pursued by independent counsel where the requisites of the statute are otherwise satisfied.”
McGuiness clarified, however, that the county’s obligation to provide independent counsel ended when Rivero left office.
The case is Rivero v. Lake County Board of Supervisors, A139216.
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