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Court of Appeal:
Sonoma Sheriff Not Entitled to Concealment of Report on Him to Board of Supervisors
By a MetNews Staff Writer
Div. Four of the First District Court of Appeal yesterday held, in a heavily redacted publicly-filed version of its opinion, that the sheriff of Sonoma County is not entitled to a preliminary injunction barring the release to a newspaper of an independent investigator’s probe of allegations by a county supervisor that the law enforcement official threatened and bullied her.
The report by investigator Amy Oppenheimer, setting forth her findings in response to a complaint filed by Board of Supervisors Chair Lynda Hopkins, does not, as Sheriff Mark Essick contends, come under the personnel record exception to the disclosure requirements of the California Public Records Act (“CPRA”) nor under the exception relating to complaints against peace officers, the appeals court held.
Permanent non-disclosure of portions of the opinion blotted out by gray bars is not intended by the court. The dispositional paragraph of the opinion by Justice Jon B. Streeter declares:
“The order of the trial court denying Sheriff Essick’s request for a preliminary injunction is affirmed. This court’s July 30, 2021 order prohibiting the County from releasing the records that are the subject of this appeal shall expire 30 days from the date this opinion is filed. The unredacted version of this opinion shall likewise remain sealed for 30 days from the filing of this opinion. Once that period expires, the unredacted version of this opinion shall become public and the County may release the records, unless the California Supreme Court orders otherwise. Costs shall be awarded to the respondents.”
Like caution was exercised by Sonoma Superior Court Judge Jennifer V. Dollard in issuing her May 19, 2021 order denying a preliminary injunction in the “reverse” California Public Records Act action in which non-disclosure of records is sought. She specified that “effect of this order is STAYED for twenty (20) days following service of entry of a final order to allow Sheriff Essick to seek an extraordinary writ if he so chooses.”
He so chose, seeking a stay of Dollard’s order, which was granted, and appealing from her order.
Not Employer’s Record
Oppenheimer’s report to the Board of Supervisors, Streeter pointed out, is a record kept by the board, which is not an agency that employs the sheriff. Though containing criticism of the sheriff, the report does not constitute a record reflecting “discipline,” exempt from disclosure as a personnel matter, Streeter said, explaining:
“The county sheriff is a public official elected by Sonoma County voters, and as such, is ultimately responsible to them—not to the Board of Supervisors or anyone else in county government….Not only does the Board of Supervisors lack power to hire the county sheriff, it lacks power to fire the person in that office as well. The Board of Supervisors, acting on behalf of the County, has no power to appoint or terminate the sheriff….
“Nor does the Board of Supervisors have disciplinary power over the county sheriff.”
He went on to say:
“Any statements from members of the Board of Supervisors approving or disapproving Sheriff Essick’s conduct, individually or collectively, are expressions of the Supervisors’ own free speech rights and do not amount to discipline….The truth and accuracy of such statements must be open to testing in the public square. Indeed, the fact we are dealing with what may fairly be characterized as political speech among elected officials toward one another underscores the importance of reading the CPRA in favor of disclosure.”
Estoppel Argument
Essick also put forth an estoppel argument, contending that the board was obliged to stick to its promise to him to conduct its probe in conformity with the Public Safety Officers Procedural Bill of Rights Act (“POBRA”). Streeter responded:
“Because nothing in the POBRA statutory scheme explicitly grants or mentions confidentiality from CPRA requests, there was no misrepresentation or concealment of any material facts here. By voluntarily granting Sheriff Essick POBRA protections, Sonoma County was offering to go beyond what it was bound to do to ensure the investigation was procedurally fair. That gave Sheriff Essick, for example, a right to have counsel present during his interview and to have the interview conducted under certain neutral conditions, but it did not create any right of confidentiality.”
The case is Essick v. County of Sonoma, A162887.
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