How to resolve AdBlock issue? Rivero alleges civil rights violations in suit over 'Brady' matter; DA concludes Rivero lied
LAKEPORT, Calif. – A brief Monday afternoon hearing led to the public disclosure of findings that Lake County's sheriff lied about shooting at a man who held a can of pepper spray in 2008.
That was the opposite result of what Sheriff Frank Rivero was seeking in serving District Attorney Don Anderson with notice of an ex parte application for a temporary restraining order and preliminary injunction, meant to prevent the findings from being released.
Anderson led the investigation into allegations that Rivero, while working as a deputy in February 2008, had shot at a man holding pepper spray, only to give investigators differing accounts of the incident in the days afterward.
Shooting at a person with pepper spray would have been a violation of sheriff's office policy, according to a statement by a sergeant questioned in the District Attorney's Office's investigation into the shooting.
Rivero served Anderson last Friday in an attempt to block him from disclosing his findings either publicly or to criminal defendants, the latter being required under the 1963 U.S. Supreme Court decision, Brady v. Maryland.
That case requires that prosecutors disclose to defendants in criminal cases any exculpatory information, including credibility issues with any officers involved in their cases.
In Rivero's filing, which alleged that his civil rights and right to privacy had been violated, it stated, “Plaintiff will suffer irreparable harm if Defendant is not enjoined from releasing, disclosing or discussing any and all aspects of Plaintiff being on the District Attorney's 'Brady List' because, once it is released that Petitioner is a 'Brady' officer, his reputation will be severely injured and his ability to continue to serve as Sheriff or in other law enforcement capacities will be nullified.”
In a hearing which ran just under 20 minutes, retired Butte County Superior Court Judge William Lamb denied Rivero's request for the restraining order but is allowing him to move forward with seeking a preliminary injunction and writ of mandate. Hearings on those matters are not yet on the court schedule.
Rivero was seeking to have his filings kept under seal and on Monday his attorney, Ryan Jones of the Jones and Mayer law firm, told the court they wanted the hearing closed to the public as well.
However, before the hearing Lamb already had approved a media request – filed earlier in the day by Lake County News – seeking to conduct a video recording of the proceedings. Lamb said he was not inclined to close the hearing.
While he said he understood Rivero's position, Lamb said he believed the presence of the media and the public was appropriate. Further, because public figures were involved, and there were issues in question relating to conduct, Lamb said it was just the kind of case that should be made public.
Lamb also denied Rivero's request to seal the complaint and associated documents, including Anderson's final report containing his conclusion that Rivero had lied to investigators.
Based on interviews, analysis and further investigation, “it has to be my finding that Deputy Francisco Rivero did not tell the truth and made material misrepresentations to investigators on February 19th and February 20 of 2008,” Anderson wrote. As a result, when Rivero is a material witness in a case, the District Attorney's Office must disclose the Brady finding.
On Monday Anderson told the court regarding his final report, “In all fairness, I would not object to counsel's motion to keep that portion under seal.”
Lamb said he understood Anderson's viewpoint. “I know you're acting out of an abundance of caution and sense of fairness,” said Lamb. “But it wouldn't make a whole lot of sense to seal that either.”
That's because Lamb found an “overriding interest” in the conduct and manner in which business is conducted in both the District Attorney's Office and the Lake County Sheriff's Office.
Jones argued that the facts underlying Anderson's finding that Rivero lied were based on an internal affairs investigation conducted in the sheriff's office.
However, Lamb said the document was not an internal affairs investigation and contained no personnel records.
“We do not have anything from a personnel file,” said Anderson.
While Jones continued to maintain that the facts came from an internal affairs investigation, Lamb responded, “That's by no means clear from the record.”
Further, Lamb said it was his understanding that Anderson's report came from interviews the District Attorney's Office conducted.
When Jones appeared ready to continue arguing the point, Lamb told him that they didn't need to get into an evidentiary hearing, and that they were not talking about the correctness of Anderson's conclusion.
Anderson explained that it's his department policy that under no circumstances does his staff look at personnel records. Rather, they uses the sheriff's criminal filings and their own investigations.
Lamb then moved on to discuss the temporary restraining order application.
With the documents entered into the court files and the public record, Lamb said it was no longer appropriate to go forward with the restraining order, which he denied without prejudice. He said he was not, however, denying the request for a preliminary injunction, which will be able to move forward to a hearing.
Rivero's filings allege civil rights violations; DA says Brady determination is his responsibility
In the case documents, Rivero argued that other than an informal hearing with Anderson, he was not able to rebut Anderson's conclusion that he was to be placed on the Brady list.
While he acknowledged that Anderson has the duty and burden to seek out Brady material once an officer is placed on the Brady list, Rivero contended that the process by which Anderson arrived at the decision violated Rivero’s due process rights “given the significant property and liberty interests at issue.”
The case also alleged that Anderson's decision was arrived at in a “unilateral, arbitrary, and informal” process.
“Plaintiff is left with a career-ending determination and no recourse,” the complaint stated.
Rivero is seeking declaratory relief, asking for the court to make a finding that Anderson's Brady determination is improper “given the insufficient due process procedures” Rivero alleges are in place. He's also asking for a writ of mandate against the decision so that he would be allowed to confront and cross-examine the witnesses against him.
In response, Anderson noted that established case law leaves Brady determinations up to him, with the district attorney having “an absolute duty and constitutional obligation” to disclose to defendants any Brady information or evidence.
“Whether to place a peace officer on the Brady list or disclose a peace officer's credibility issues are at the sole discretion of the District Attorney,” Anderson wrote. “There is no statutory or case authority that conflicts with this discretion.”
Anderson's response to Rivero's complaint explained that in March 2011 Deputy Michael Sobieraj – who had been at the scene of the shooting, working alongside Rivero – contacted the District Attorney's Office to report that Rivero had lied to investigators, which spurred Anderson's inquiry.
In November 2011, Anderson's office informed Rivero that he would have the opportunity to submit written comments, material or objections that would be considered in the Brady decision. Anderson said that, contrary to Rivero's statement, there never was an informal hearing.
After a series of delays that Anderson attributed to a dispute between Rivero and the Board of Supervisors over the hiring of independent counsel, Rivero and his attorney met with Anderson and his staff on Oct. 12, 2012, according to Anderson's filings.
“At this meeting Sheriff Rivero spoke out in his defense,” Anderson said in his response. “He also produced documents and a MAV (mobile audio video) tape that had never been released to the District Attorney's Office prior to that time.”
As a result, a supplemental investigation was conducted, which included reviews of evidence, with some of the relevant witnesses reinterviewed, Anderson's response explained, leading to the investigation's completion and the drafting of the final report. Rivero was notified of the decision on Feb. 19.
Anderson said Rivero can continue in his capacity as sheriff with no detriment, even making arrests and investigating cases. “The detriment is to the District Attorney's Office in prosecuting the case.”
Anderson's Brady policy allows for him and his designees to submit potential Brady evidence to judges for in-camera – or confidential – review “to determine if discovery to the defense is required.”
That's what Senior Deputy District Attorney Art Grothe did last week during motion hearings for three Hells Angels members facing prosecution for a June 2011 fight. Rivero became involved in the case by retrieving surveillance video of the incident from Konocti Vista Casino.
After reviewing Anderson's final report in chambers with Grothe, retired Lake County Superior Court Judge David Herrick ordered that the material be provided to the defense but kept under seal.
Anderson said the defense has requested additional materials which, he believes, must be turned over based on Herrick's ruling.
Anderson's final report on the Rivero investigation is below. It should be noted that some of the language it contains may be offensive.
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Right click to Download the full report here.
030413 Lake County District Attorney's Final Report Regarding Sheriff Rivero Brady determination
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LAFCO letter, utility agreement, signage on Lakeport City Council March 5 agenda
LAKEPORT, Calif. – The Lakeport City Council this week will discuss a letter from the Local Area Formation Commission requesting the city and county meet over an annexation proposal, and also will take up a utility deferral agreement and a proposal for new downtown signage.
The council will meet beginning at 6 p.m. Tuesday, March 5, in the council chambers at Lakeport City Hall, 225 Park St.
On the council’s consent agenda – a slate of items usually accepted on one vote – are ordinances, warrants, minutes, a resolution confirming the mayoral appointment of one permanent member and one alternate member to the oversight board of the former Lakeport Redevelopment Agency and a letter of support for Congressman Thompson's Gun Violence Task Prevention Task Force.
At the Tuesday meeting, City Manager Margaret Silveira will seek council direction regarding a letter from the Lake County Local Area Formation Commission – or LAFCO – requesting that the city and the county of Lake meet.
LAFCO wants the two local governments to meet and try to work out disagreements over the city’s proposal to annex the 197-acre South Main Street corridor.
In other business, City Attorney Steve Brookes will take to the council the final consideration of the sewer and water expansion fee deferral agreement for the Lakeport Senior Apartments Project, which is being developed by Lakeport Pacific Associates.
The council also will consider adjusting the Westshore Pool manager classification pay to be competitive with the surrounding communities and provide direction to staff regarding the operation of the pool this season.
City Engineer Scott Harter will ask the council to consider a proposal to partner with the Lakeport Main Street Association for the installation of alternate street signs in the historic downtown area.
Council members also will consider giving staff direction regarding a request from Mediacom for an aerial easement.
In a closed session, the council will discuss a case of anticipated litigation.
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Supervisors to discuss position on hitch endangered species petition, gun violence prevention efforts
LAKEPORT, Calif. – The Board of Supervisors will consider taking a position on an endangered species petition for the Clear Lake hitch, discuss gun violence prevention and also will talk about a proposal to meet with the city of Lakeport over an annexation dispute this week.
The board will meet beginning at 9 a.m. Tuesday, March 5, in the board chambers on the first floor of the Lake County Courthouse, 255 N. Forbes St., Lakeport. The meeting will be broadcast live on TV8.
At 9:45 a.m. the board will consider having county representation at the Fish and Game Commission meeting in Mt. Shasta on March 6.
The commission is due to consider the Center for Biological Diversity’s petition for endangered species for the Clear Lake hitch, one of the lake’s native fishes.
The board also will consider offering a position on the petition for the hitch, which has reportedly been in decline for several decades.
At 10 a.m., Supervisor Anthony Farrington has requested a board discussion and consideration of proposed principles of gun violence prevention.
In an untimed item, the board will consider a response to a letter from the Lake County Local Area Formation Commission requesting a meeting between city of Lakeport and county of Lake.
LAFCO is asking the two local governments to meet and discuss the proposed annexation of the South Main Street area, which has been a source of dispute between the county and Lakeport.
Also on Tuesday, at 9:10 a.m., the board will present a proclamation designating March as Meals on Wheels Month.
On the consent agenda, the board will approve appointing Kay Lytton as assistant treasurer-tax collector effective March 5 and interim treasurer-tax collector effective March 11.
Lytton will fill in temporarily in the wake of the resignation of Lake County Treasurer-Tax Collector Sandra Shaul, who has accepted a position with the county of Marin.
The full agenda follows.
TIMED ITEMS
9 a.m. A-1 to A-4: Approval of consent agenda, which includes items that are expected to be routine and noncontroversial, and will be acted upon by the board at one time without discussion; presentation of animals available for adoption at Lake County Animal Care and Control; consideration of items not appearing on the posted agenda, and contract change orders for current construction projects.
9:05 a.m.: Citizen’s input. Any person may speak for three minutes about any subject of concern, provided that it is within the jurisdiction of the Board of Supervisors and is not already on the agenda. Prior to this time, speakers must fill out a slip giving name, address and subject (available in the clerk of the board’s office, first floor, courthouse).
9:10 a.m., A-5: Presentation of proclamation designating the month of March 2013 as Meals on Wheels Month.
9:15 a.m., A-6: Public hearing, consideration of proposed ordinance adding Article X to Chapter 15 of the Lake County Code establishing standards for the issuance of marina berthing licenses in the county of Lake; and (b) consideration of staff request for conceptual approval of placement of a Leviathan Floating Island in the Holiday Harbor Marina and board direction to enter into a license agreement.
9:30 a.m., A-7: Consideration of proposed agreement between the county of Lake and Aramark Correctional Services LLC., for food services at the Lake County Jail and Juvenile Hall facilities.
9:45 a.m., A-8: Consideration of county representation at the Fish and Game Commission meeting in Mt. Shasta, on March 6, 2013, regarding the petition to designate the Clear Lake hitch an endangered species; and (b) consideration of board position regarding the petition to designate the Clear Lake hitch an endangered species.
10 a.m., A-9: Discussion/consideration of proposed principles of gun violence prevention.
NONTIMED ITEMS
A-10: Supervisors’ weekly calendar, travel and reports.
A-11: Consideration of appointments to the following: Area 1 Developmental Disabilities Board, Countywide Parks and Recreation Advisory Board, Emergency Medical Care Committee, In-Home Supportive Services Advisory Committee, Lake County Child Care Planning Council and Maternal, Child and Adolescent Health Advisory Board.
A-12: Consideration of proposed response to the Lake County Local Area Formation Commission (LAFCO) letter requesting meeting between city of Lakeport and county of Lake.
A-13: Consideration of proposed actions relating to South Lakeport water system: (a) waive consultant selection process; (b) direct Special Districts to negotiate with Ruzicka Associates; (c) direct the Department of Public Works to include coordination of this water line design in the scope of work for Quincy Engineers when that agreement is amended.
A-14: (a) Consideration of request to approve amendment for Governmental 457(b) Plan Document to permit employee plan to plan transfers between eligible deferred compensation plans; and (b) consideration of request to discontinue future payroll deferrals to Tax Deferred Solutions (TDS) pending consideration of long term future of the TDS plan.
CLOSED SESSION
A-15: 1. Conference with labor negotiator: (a) county negotiators: A. Grant, L. Guintivano, M. Perry, and A. Flora; and (b) employee organization: Deputy District Attorney's Association, Lake County Deputy Sheriff's Association, Lake County Correctional Officers Association, Lake County Employees Association and Lake County Safety Employees Association.
A-15: 2. Conference with legal counsel: Existing litigation pursuant to Gov. Code Sec. 54956.9(a): Jensen and Larson v. Lake County Sheriff’s Office, et al.
A-15: 3. Conference with legal counsel: Significant exposure to litigation pursuant to Government Code Section 54956.9, subd (b)(1)(E): Frank Rivero v. Lake County Board of Supervisors.
CONSENT AGENDA
C-1: Approve minutes of the Board of Supervisors meeting held on Feb. 19, 2013.
C-2: Adopt proclamation designating the month of March 2013 as Meals on Wheels Month.
C-3: Appoint Kay Lytton as assistant treasurer-tax collector effective March 5, 2013, and interim treasurer-tax collector effective March 11, 2013.
C-4 : Adopt Resolution amending Exhibit “A” of the County Conflict of Interest Code.
C-5: Approve agreement between the county of Lake and Sonoma Psychotherapy Training Institute for FY 2012-13 Eye Movement Desensitization and Reprocessing International Association (EMDRIA) approved basic training in eye movement desensitization and reprocessing (EMDR), in an amount not to exceed $12,500, and authorize the chair to sign.
C-6: Adopt resolution amending Resolution No. 2012-107 establishing positions and allocations to conform to the Adopted Budget for Fiscal Year 2012-2013 (adjusting salaries of licensed professional medical staff in the Health Services Department, Public Health Division, Budget Unit 4011).
C-7: Adopt resolution amending Resolution No. 2012-107 establishing position allocations for Fiscal Year 2012-2013, Budget Unit No. 1903, Department of Public Works (delete one (1) Public Works Service Technician I/II, and add one (1) Senior Accounting Technician).
C-8: Award bid for Riviera Heights CSA Pavement Improvements to Central Valley Engineering & Asphalt Inc., in the amount of $126,193.12, and authorize the chair to sign the agreement and notice of award.
C-9: Approve agreement between the county of Lake and Advanced Communications to develop a Comprehensive Interoperable Communication Needs Assessment and Strategic Plan, amount not to exceed $40,000, and authorize the chair to sign.
WATERSHED PROTECTION DISTRICT BOARD OF DIRECTORS
C-10: Approve first amendment to agreement between the Lake County Watershed Protection District and Paragon Partners Ltd. for appraisal and relocation assistance services for the Middle Creek Flood Damage Reduction and Ecosystem Restoration Project, an increase of $9,950, and authorize the chair to sign.
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County seeks applicants for Countywide Parks and Recreation Advisory Board
LAKE COUNTY, Calif. – The Lake County Board of Supervisors and the Countywide Parks and Recreation Advisory Board are seeking interested applicants for the District 4 seat for the Countywide Parks and Recreation Advisory Board.
This board-appointed position is a two-year term, expiring on the first Monday in January of every odd numbered year per Resolution 84-393.
The Countywide Parks and Recreation Advisory Board’s function is to advise the Board of Supervisors in matters affecting the Lake County Parks and Recreation Division by reviewing improvements, maintenance and recreation programs, budget and capital improvements, and act as liaison between community, Board of Supervisors and Public Services Director Caroline Chavez.
Applications are provided on the Lake County Web site under the Board of Supervisors listing at http://bos.lakecountyca.gov/Assets/BOS/docs/Advisory+Board+Application+%28also+for+Commissions+and+Trustees%29.pdf?method=1 , and may also be obtained from the Lake County Public Services Department at 333 Second St., Lakeport, CA 95453.
If you have any questions or need additional information, contact the Public Services staff at 707-262-1618.
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Lakeport City Council to hold strategic planning workshop Feb. 22
LAKEPORT, Calif. – The Lakeport City Council will hold a special strategic planning meeting at the end of the week.
The meeting will take place beginning at 8 a.m. Friday, Feb. 22, in the council chambers at Lakeport City Hall, 225 Park St.
Michelle Murphy of InnoPro Performance Solutions will facilitate the long range planning session for the city.
The public is invited to attend the meeting, which is expected to last most of the day Friday.
Mayor Tom Engstrom said this week that while the special meeting is open to the public, it will have limited opportunity for public comment.
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