LAKEPORT, Calif. – On Tuesday the Board of Supervisors voted against hiring outside legal representation for the county’s sheriff, who is locked in a dispute with the district attorney.
The board voted 4-1, with Supervisor Denise Rushing voting no, to deny Sheriff Frank Rivero’s request to hire him an attorney in the ongoing matter with District Attorney Don Anderson.
The issue at the heart of Rivero’s dispute with Anderson is related to a February 2008 shooting in Cobb in which Rivero, then a deputy sheriff, shot at a man who was holding pepper spray.
Because it’s a personnel matter, county officials have not offered specifics. However, Board Chair Rob Brown stated on Tuesday that it was his understanding that the issue was not about the shooting itself.
Rivero’s request first appeared on the Feb. 14 agenda, after County County Anita Grant had stated that her office had a conflict of interest because the dispute involved two county officials.
At which time it was held over to allow the board to find out of Rivero would be granted representation by a legal defense fund for officers offered through the Peace Officers Research Association of California (PORAC). The board later was informed PORAC would not offer that assistance.
On Feb. 21, when the matter came back, Supervisor Anthony Farrington reported that Anderson would waive the conflict, and proposed a compromise embraced by the board in which Grant would analyze creating an “ethical wall” to allow her staff to represent Rivero. However, later that same day an attorney for Rivero contacted Grant to say he would not waive a conflict.
Rivero did not appear due to illness at the board’s Feb. 28 hearing, and so the matter came back to the board once more on Tuesday.
Grant told the board Tuesday that Rivero was asking for the representation because of a hearing process Anderson has instituted as part of his inquiry.
“This is not a standard investigatory process,” Grant said.
Rivero said Government Code Section 31000.6, under which he was making the request for outside legal representation, has “two triggers” – that he asks for it and that county counsel declares a conflict.
Board members said they believed they had found a compromise by asking for an ethical wall, but Grant said it came down to the fact that Rivero had not waived his conflict, so her office’s involvement wasn’t an option.
She said it was up to the board to determine if the prerequisites for hiring Rivero counsel were met. “I suggest they are.”
Farrington explained that he had communicated with Rivero by e-mail and verbally, and that based on the last conversation they had, Farrington said Rivero had indicated he would accept representation from the County Counsel’s Office.
“You and I have not communicated since I presented this compromise and solution,” Farrington said to Rivero.
“I thought it was a reasonable suggestion,” said Farrington, adding that he still believed it was in the best interest of the county and the sheriff, and saved taxpayer money.
Rivero said he had asked for representation from the inception of the conflict with the District Attorney’s Office.
Brown said the matter was difficult because not all of the information about why the dispute is taking place was public. He said the board could not divulge the details to make the matter more clear, but Rivero could.
Brown also recited back to Rivero words from an e-mail exchange between them in which Rivero – responding to criticisms from Brown about using sheriff’s staff to write a press release about a collision he was involved in on Feb. 20 – said, “The days of keeping the Lake County public uninformed of what their elected officials are up to are over.”
“I agree with you,” Brown said.
Rivero reiterated that it’s about the 2008 shooting, and the reopening of an investigation into that matter. Brown countered that the shooting itself wasn’t the issue.
“This stems from that incident,” said Rivero.
Brown said the shooting wasn’t being investigated. Rivero said he wasn’t going to argue, and that Brown knew what it was about. Brown said he thought the public should know, too. Rivero said the public does know.
“What happens if we just say no?” asked Supervisor Jim Comstock.
Grant said she was sure that the sheriff will consider taking legal action, the cost of which will be borne by the county.
“So either way, we pay,” said Brown.
Warnings of precedent
Rushing said that Anderson was inventing a whole new process, and while she also thought they had a solution through the county counsel’s involvement – which Rivero’s refusal to waive the conflict nullified – she felt Rivero had a right to counsel.
Brown said he didn’t disagree that the sheriff had a right to legal counsel, but he disagreed that taxpayers should fund it.
Supervisor Jeff Smith said he thought that Rivero had been open to county counsel’s representation. “I feel like we wasted a couple of weeks by going down this path,” he said, adding, “Maybe I misunderstood.”
“You absolutely misunderstood,” said Rivero.
Stating that he’s been “strenuously advised” not to take part in the hearing process Anderson was instituting, Rivero said a potentially expensive legal battle is before the county, and he suggested the board look at Anderson, “who brought this battle to my doorstep.”
Rivero added, “I can’t sit here like a human pinata and allow myself to get beat up.”
He warned the board that there is the potential in the matter for precedent that will affect him, his deputies and law enforcement throughout the state.
Brown questioned those impacts. Rivero said there was a new “unprecedented” process, “developed apparently to apply to me.”
Brown questioned if it was because of that precedent that PORAC’s counsel was refusing to step in. Rivero said he couldn’t speak to that.
Farrington stated that he felt “a little burnt” in his efforts to help Rivero meet his counsel needs, and suggested Rivero now would need a writ from the courts to get the county to provide it.
He added that it was his understanding that Anderson was not going to pursue the original panel hearing process he had proposed, and Brown said that was his understanding as well. Grant said if that additional element no longer existed, the board had the ability to revisit the sheriff’s right to counsel.
Rushing asked Rivero directly if it he would waive the conflict. He said he would not.
She then moved that the board provide outside counsel based on the narrow scope of the hearing process, and that the board would revisit the matter if the legal costs exceeded $10,000.
The motion died for lack of a second.
Rushing’s colleagues on the board held fast to concerns about hiring outside counsel.
“I believe the sheriff can be competently represented represented by your office and I think that’s in the best interest of the county,” Farrington said to Grant.
Smith said he questioned the interpretation of the government code under which Rivero was making his request, noting that it referred to his duties as sheriff, while the issue arose from before Rivero had taken office.
“The issue is this nonstandard process,” said Rushing.
She then made a second motion to provide outside counsel, and revisit the matter if it exceeded $1,000 in cost.
That motion also died without a second.
Farrington then moved to deny the request for outside counsel, which the board approved 4-1, with Rushing voting no.
A supporter of Rivero’s said on the way out of the chambers that the decision was going to cost the county more money.
“We’ll see,” said Farrington.
Also on Tuesday, the board discussed in closed session Rivero’s ongoing U.S. Equal Employment Opportunity Commission claim against the county, filed in 2009.
Rivero had alleged in the claim that he was discriminated against due to race and also was the victim of retaliation for making allegations of harassment against other sheriff’s office employees.
The board had no action to report on the item when it came out of closed session.
E-mail Elizabeth Larson at
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