LAKEPORT, Calif. – After devoting time both during its morning and afternoon sessions on Tuesday to the sheriff’s request for legal representation in a dispute with the district attorney, the Board of Supervisors held over making a decision until next week while it attempts to get more of its questions answered.
County Counsel Anita Grant told the board that she felt she had to declare a conflict of interest and therefore could not represent Sheriff Frank Rivero in his dispute with District Attorney Don Anderson.
Grant told the board during the morning session that the matter “could lead to further legal proceedings at this time.”
Rivero said there is a possibility that if he has legal representation soon that there is a potential resolution ahead of going into full litigation involving himself, the sheriff’s office, the District Attorney’s Office and the county.
However, Rivero warned, “If the board opts to wait and see what happens and the DA forges forward with this adventure and the expected results occur, then we’ll be back here again but under much more different circumstances and more than likely much more expensive circumstances, because at that point it will require litigation as opposed to the possibility that this could be resolved by some other means as long as there are open channels of communication between an attorney or attorneys.”
One of the key questions to arise was whether Rivero was eligible for legal representation through the Peace Officers Research Association of California (PORAC), which both Grant and Rivero were attempting to determine.
By day’s end Rivero had stepped out of the board chambers to take a phone call from a PORAC legal representative, and with no answer forthcoming the board adjourned the matter to next Tuesday, Feb. 21.
Anderson was not present for the discussion, but told Lake County News in an interview last week that he could not elaborate because the matter was confidential.
2008 shooting at heart of case
Rivero told the board that Anderson had “resurrected” a shooting Rivero was involved in on Feb. 19, 2008.
“That shooting was fully investigated at the time by the former DA’s office,” said Rivero. “The determination at that time was my actions were fully appropriate.”
In that incident, Rivero and another deputy, Michael Sobieraj, responded to a call in Cobb regarding a missing person. They would find Victor Rodin, who reportedly had been suffering mental problems, inside his girlfriend’s dimly lit home.
Rodin refused to comply with the deputies’ orders. Sobieraj told investigators that he heard Rivero tell Rodin, “drop the pepper spray, drop the pepper spray.” He said he could not see pepper spray in Rodin’s hand, but did see him holding a lighter.
Rodin – as well as his girlfriend – later told investigators that he had pepper spray, according to a 2010 district attorney’s report.
The situation escalated and Rivero shot his .45-caliber Glock handgun at Rodin, with the bullet lodging in a door frame. Rodin was not hurt.
Then-District Attorney Jon Hopkins found there was insufficient evidence to support filing criminal charges against Rivero for excessive use of force.
Hopkins’ final report was issued in September 2010. He had reopened the investigation earlier that year, as Lake County News has reported.
Hopkins told Lake County News in a September 2010 interview that while he had previously determined that there wasn’t a criminal filing to be made, “It troubled me that we had the inconsistencies that we did.”
At that time, Hopkins cited obligations that district attorneys have under the U.S. Supreme Court’s 1963 decision, Brady v. Maryland, which requires that prosecutors notify defendants in criminal cases whenever a law enforcement officer involved in their case has been found to have knowingly lied in the course of their official duties.
Due to concerns about those obligations, and because he said officials are advised to err on the side of caution, Hopkins reopened the investigation in 2010.
Hopkins’ report stated that Rivero initially told an investigator on the night of the shooting that he had found Rodin holding a lighter in one hand and pepper spray in the other, and that Rodin bent over to pick something up and pointed it at him, leading to him discharging his handgun.
Rivero then reportedly told a second investigator the next day that he found Rodin with a a lighter in his right hand “and something in his left hand that he was concealing behind his left leg.”
The full report by Hopkins can be found at http://bit.ly/ztj3bM.
Sheriff warns of potential impacts
Rivero supplied supervisors with a memorandum dated September 25, 2008, addressed to him and written by Capt. James Bauman, stating, “The circumstances surrounding that incident have been thoroughly investigated in accordance with fatal incident protocol and it has been determined that your actions were appropriate, justified and in accordance with department policy. No further action shall be taken and you may consider the matter closed.”
“The investigation itself could lead to the crippling of my ability to do my job,” Rivero told the board Tuesday.
Board Chair Rob Brown asked Rivero to explain that statement, noting that the Bauman memo said nothing about the district attorney’s investigation. He also suggested that they should wait for the investigation to go forward and see what it yielded.
“We don’t know where the DA is headed with this,” said Rivero, adding that he needed to be represented by the county in his capacity as sheriff.
Brown said he wasn’t convinced, and he was not sure how it could limit Rivero’s ability to do his job.
He also asked Rivero, “Are you now, or have you tried to prevent this investigation from occurring?” Rivero said no.
Supervisor Denise Rushing asked if there was a way to manage the amount that would be spent on legal representation. “It looks like we’re writing an open check.”
Grant said it was a good question. “Ultimately, the board does hold the purse strings on this,” she said, but added it’s difficult to put a limit on expenditures at this point in the process.
Brown questioned whether the county had exhausted the possibility of legal defense for Rivero through PORAC or the Lake County Deputy Sheriffs Association.
Supervisor Anthony Farrington asked if representation is required at this point or if it’s too premature. He also questioned if Rivero would be hampered throughout the investigation process.
Grant said it’s not the investigation that is the issue. “The issue is the outcome of the investigation,” she said. “The outcome may very well impair his ability.”
Brown suggested Rivero should lay the matter out for the public and let the community know what’s going on. Grant suggested that in Rivero’s case, “to disclose too much at this point could prejudice his own interests.”
Rivero told the board, “I have given you at least a very clear indication of what this is about,” referencing the shooting.
If he didn’t get assistance early, Rivero suggested it could be more expensive in the long run, and could involve full litigation with him, Anderson, their departments and the county.
Brown asked what Rivero meant by litigation. Rivero responded by saying a writ of mandate, which would prohibit the district attorney from proceeding with his intended actions.
Brown asked if the taxpayers were going to pay an attorney to stop Anderson from doing his job. Rivero said that would be he case if Anderson “is going outside of his prescribed authority.”
During the discussion Brown suggested that he wanted to check with PORAC and also wanted more information about if the district attorney previously had considered the investigation closed before Anderson's recent inquiry into the case.
Brown pointed out that a case involving allegations of assault against interim Clearlake Police Chief Craig Clausen had been reopened last year – in that case, by Rivero – after it had been considered closed.
Rivero suggested that the investigation into his officer-involved shooting could potentially impact every one of his officers, as well as every officer in the state, because there are “overarching issues.”
As to the potential source of funds for Rivero’s defense, County Administrative Officer Kelly Cox said the money could come from within Rivero’s budget, noting he has worked hard to realize savings in the sheriff’s office.
After about 45 minutes of discussion, the board continued the matter to the afternoon to allow Grant time to check with PORAC. When they reconvened, she said both she and Rivero had attempted to contact a PORAC representative via phone and e-mail, and were waiting for a response.
Rivero wanted to bring forward Chris Macedo, recently promoted to captain within the sheriff’s office, to explain his past discussions with district attorney staff about the matter being closed.
Brown replied that during the lunch break he had received information that the District Attorney’s Office had not previously closed the investigation into Rivero's officer-involved shooting.
Macedo, who was an administrative sergeant at the time of the shooting, told the board he investigated the shooting and determined it was justified.
He stated he spoke to John Flynn, a district attorney’s investigator, who told him that a parallel investigation also was complete and there was no issue. Macedo said he had no written verification, just verbal communications.
Rivero asked the board to move his request for legal representation forward “as quickly as possible,” adding the longer it drags out, the worse the situation gets.
Regarding the facts of the case, Rivero told the board, “I’ve given you all I can give you without compromising other peace officers,” a stance he said was based on information he had received from experts.
He added that he never expected the case “to come back and haunt me four years later,” and said he doesn’t think it would have if he wasn’t the sheriff.
According to Rivero, he’s already spent an “inordinate amount of time” on this investigation and other investigations Anderson has launched.
Rivero said he has the public’s trust to consider. “If they believe I am under some type of cloud, and for whatever reason the DA comes to that conclusion, I have to fight that. I have no choice,” he said, explaining, “I am being forced to take the actions that I’m taking.”
During the discussion Rivero received a phone call from PORAC and left to take it in Cox’s office. When, after about an hour, the board still didn’t have an answer from Rivero on the legal representation, Brown continued the matter to next week, noting that he would try to get the matter on as early as possible on the Feb. 21 agenda.
E-mail Elizabeth Larson at
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