THIS STORY HAS BEEN AN UPDATED AND EXTENDED WITH ADDITIONAL DETAILS.
LAKE COUNTY, Calif. – A legal battle is brewing between the county's correctional officers and the new sheriff over peace officer-related status, particularly the ability to carry firearms in certain situations.
Lake County Correctional Officers' Association representatives said the suit – which names Sheriff Frank Rivero and the county of Lake – will be filed Tuesday morning in Lake County Superior Court.
Rivero said in a Monday statement that the suit is attempting to force the county's recognition of correctional officers as peace officers.
David Mastagni of the Sacramento-based firm Mastagni, Holstedt, Amick, Miller & Johnsen, which represents the association, said Rivero unilaterally stripped the county's correctional officers of peace officer status already granted them under the state's penal code.
One of the central issues of concern for both sides is one of safety – Rivero alleges that having correctional officers armed at all times carries with it both risk and liability, while the association believes its 40 to 50 county members have now been placed in harm's way.
Rivero has changed association members' status to “custodial,” which means that they cannot carry firearms unless transporting prisoners to court, medical treatment or another facility, said association President Mike Silva said.
Previously, correctional officers were able to carry firearms with them while traveling to and from work or in other public situations, Silva said.
Now, with correctional officers in the same uniform as deputies but unarmed, they become “a target in the public,” according to Silva.
Rivero said he took the action because he believed having correctional officers carrying firearms in all situations “posed a substantial and unacceptable risk of liability to the county and its taxpayers.”
While preparing to issue new identification cards to his staff, Rivero said he noticed the identification cards that had been issued previously “erroneously identified the correctional officers as peace officers.”
After further research, Rivero said he discovered that correctional staff routinely carried side arms while on duty, to and from work, and in other settings.
“Should a Lake County correctional officer use their firearm on duty or engage in any actions reserved for peace officers, other than the process of transporting prisoners, they would be reliant solely on having been issued a sheriff’s office peace officer ID card to justify acting in the capacity of a peace officer,” Rivero said.
Said Mastagni, “He's not produced any evidence that there's ever been any accidents or misfires.”
Silva added that correctional officers undergo the same firearms training as deputies, including the PC 832 Arrest and Firearms course required by the Commission of Police Officer Standards and Training. The only difference in their training is that they have not attended a full law enforcement officers' academy.
In addition to alleging a violation of the correctional officers' peace officer status, Mastagni said the lawsuit is claiming unfair labor practices by Rivero and the county.
“In layman’s terms, when you're stripping these officers of their peace officer status unilaterally, that's an unfair labor practice because you have to negotiate over it,” he said.
Mastagni noted, “We feel very strongly about our case or we wouldn’t be filing it.”
Silva said the correctional officers still possess their firearms, which are kept in a locker unless they're involved in transporting prisoners. He said firearms are not carried at any time within the jail.
County Counsel Anita Grant said Monday that she hadn't yet seen the document, so couldn't comment on the suit.
However, she said, “This office represents the county and every office in it,” noting that the sheriff's office would be defended “appropriately” in the case.
County Deputy Administrative Officer Matt Perry, who has been involved with negotiations with the association, said the most recent memorandum of understanding between the association and the county – for fiscal year 2010-11 – doesn't directly reference a policy allowing correctional officers to carry firearms outside of transporting prisoners.
However, he noted, “There's a provision that the county provides the necessary ammunition for the standard duty weapon.”
Legislation established correctional officers' status
Mastagni said the county's correctional officers were made peace officers through state legislation supported by former Sheriff Rod Mitchell.
“In May of 2008, Sheriff Mitchell made the members of the Lake County Correctional Officers' Association peace officers under 830.1(c),” Mastagni explained.
Then-Assemblyman Tom Berryhill (R-Modesto) authored AB 2215, which passed the Legislature and was signed by Gov. Arnold Schwarzenegger in May 2008, according to legislative records.
The bill's language added Lake, Mariposa and San Benito counties to the list of sheriffs' offices around the state that are permitted to classify their custodial officers as peace officers.
As a result of that legislation, today California Penal Code Section 830.1(c) states the following:
“Any deputy sheriff of the County of Los Angeles, and any deputy sheriff of the Counties of Butte, Calaveras, Glenn, Humboldt, Imperial, Inyo, Kern, Kings, Lake, Lassen, Mariposa, Mendocino, Plumas, Riverside, San Benito, San Diego, Santa Barbara, Santa Clara, Shasta, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Tulare, and Tuolumne who is employed to perform duties exclusively or initially relating to custodial assignments with responsibilities for maintaining the operations of county custodial facilities, including the custody, care, supervision, security, movement, and transportation of inmates, is a peace officer whose authority extends to any place in the state only while engaged in the performance of the duties of his or her respective employment and for the purpose of carrying out the primary function of employment relating to his or her custodial assignments, or when performing other law enforcement duties directed by his or her employing agency during a local state of emergency.”
Silva said Mitchell took the action in the interest of public safety.
Mastagni said not only are there “massive” safety concerns but growing workload concerns as well, because correctional officers are now not able to do as many duties as before.
Under the former status, correctional officers were able, when needed, to do bailiff duty in the courts, could assist in drunk driving checkpoints and sex offender sweeps, act as peace officers during times of disaster and write criminal reports for jail-related matters, such as fights between inmates or other incidents, Silva said.
All of those abilities are now gone, he said.
Mastagni argued that there are no cost savings, and no benefit to the public in hindering the tasks correctional officers were formerly able to carry out.
He said many other law enforcement agencies around the state are seeking such authority for their correctional officers. “I've never heard of a sheriff trying to go the other way,” he said calling Rivero's decision “strange.”
Rivero said he notified Silva that he would be issuing new ID cards to correctional staff that properly identified them as correctional officers.
He said he also instructed the jail commander to inform correctional staff that they were not “peace officers” as defined in Penal Code Section 830.1
Rivero said his notifications were met with a cease and desist letter from one of the association's attorneys.
Jeffrey Edwards, another attorney with Mastagni, Holstedt, Amick, Miller & Johnsen, who is working on the case, in fact sent Rivero two cease and desist letters, dated March 15 and March 17.
In the first letter, Edwards requested a meet and confer over the “unilateral” change to peace officer status, noting, “This change adversely affects the wages, hours and terms and conditions of employment for the LCCOA members. Accordingly, this policy is a mandatory subject of bargaining.”
He also cited government code that requires advance notice to the association “of any proposed policy change which alters working conditions,” and stated he would file an unfair practice charge with the Public Employment Relations Board and pursue remedies with the superior court.
In the March 17 letter, Edwards demanded that Rivero stop violating Government Code Section 26605.1, which provides that “no deputy sheriff shall be required to become a custodial or other officer voluntarily.”
Edwards gave Rivero a March 21 deadline to rescind his order. “If I do not hear from you or you refuse to comply with the law, I will petition the Superior Court to order you to do so,” Edwards wrote.
Grant issued the county's two-page, strongly worded reply to Edwards, dated March 18, noting, “By this response, I wish to quickly disabuse you of any notion that efforts have been taken or are underway to change the current status of our correctional officers.”
She maintained that the county's correctional officers did not become peace officers under Penal Code Section 830.1(c), pointing out that an appellate court upheld a Santa Clara trial court's determination that correctional officers there didn't become deputy sheriffs. The court reached that conclusion because the sheriff in that county did not provide correctional officers with deputy sheriff's badges and correctional officers were not sworn as sheriff's deputies.
Likewise, since local correctional officers received no badges and were not sworn in, Grant argued that they were not deputy sheriffs under 830.1(c).
“Sheriff Rivero has simply sought to correct any misunderstanding as to the purpose and effect of the above-referenced provision,” Grant wrote. “There has been no change in policy and there is no change in working conditions.”
She added, “Sheriff Rivero is very well aware of the obligation to meet and confer in good faith when any proposed change in policy affects working conditions and he will meet that obligation when the need to do so arises.”
Grant told Edwards that she and Rivero would be happy to meet to discuss the matter.
Rivero said they made the offer while being confident the county's position in the matter “is prudent and reasonable.”
Mastagni said the association wasn't interested in meeting after the fact. “The outcome is already predetermined.”
Once the case is filed and moves forward at the superior court level, Mastagni said the county will have to come to court to argue its case. The association is seeking to compel the sheriff to maintain the status quo.
He said that, whatever the decision is, it could come in “a matter of weeks, not months.”
E-mail Elizabeth Larson at
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