LAKE COUNTY, Calif. – Lake County’s sheriff is asking a court to make the county provide him legal counsel in response to a District Attorney’s Office inquiry into his allegedly lying about a 2008 shooting, an effort the county plans to fight in court.
The Fullerton-based law firm Jones & Mayer filed a writ of mandate on Sheriff Frank Rivero’s behalf on March 26, arguing that California Government Code requires the county provide counsel in cases where county counsel has declared a conflict.
On Wednesday, April 25, the county filed responses from County Counsel Anita Grant’s office, the Board of Supervisors, Board Chair Rob Brown and District Attorney Don Anderson.
A hearing has not yet been set in the case.
Rivero was investigated by Anderson for having allegedly lied to sheriff’s investigators after the shooting, which occurred on Cobb on Feb. 19, 2008, while Rivero was still a deputy.
A previous District Attorney’s Office report from 2010 explained that Rivero had reportedly told a sergeant that the male subject he shot at was holding a lighter in one hand and a can of pepper spray in another. He later told another sergeant that he could not see what was in the man’s hand.
The 1963 U.S. Supreme Court case Brady v. Maryland requires prosecutors to notify any defendant in a criminal case of information that might be exculpatory. That applies to law enforcement officers who have credibility issues.
A series of emails Lake County News received from the county through a Public Records Act request last month revealed that Anderson had investigated the allegations that Rivero had lied.
Anderson told Lake County News in March that a final determination in the case – which could result in Rivero receiving a “Brady letter” and being placed on a list of officers with credibility issues – was pending a response from Rivero. The full story including those documents can be found at http://bit.ly/AD8RKd .
If Rivero were to be placed on a Brady list it would mean the District Attorney’s Office would notify the defense in any case in which Rivero was involved as a witness.
Board turns down counsel request
Rivero’s filing stated that he asked the Board of Supervisors on or about Feb. 21 to appoint independent counsel to assist him in the matter of Anderson’s inquiry into the shooting. The request actually first went to the board on Feb. 14.
Grant declared a conflict of interest in the case, but the board’s discussion on the matter – which was continued over several weeks – resulted in the board asking Grant to explore creating an “ethical wall” in order to be able to represent Rivero.
Grant had indicated that her staff previously had created such an ethical wall, which includes maintaining separation among files, records and information in order to prevent the release of confidential information to opposing counsel.
While Anderson had indicated he was willing to waive the conflict, after the board directed Grant to investigate creating the ethical wall on Feb. 21, Rivero responded by saying he would not waive the conflict, as Lake County News has reported.
At its March 6 meeting the board voted 4-1 – with Supervisor Denise Rushing voting no – to turn down Rivero’s request for representation.
Rivero’s March 26 filing stated that Anderson had reopened the investigation because Anderson believed that Rivero had been untruthful in statements during the shooting investigation, with Anderson reportedly informing Rivero that he would be deemed a “Brady officer.”
The document states, “The honesty and credibility of a peace officer are the essence of his or her ability to function as an officer.”
It continued that Rivero being designated as a Brady officer is “likely to continue to have a materially detrimental effect” on Rivero’s ability to fulfill his duties as sheriff.
Rivero and his attorneys argue that under Government Code Section 31000.6 the Board of Supervisors is statutorily obligated to provide legal counsel to assist the sheriff in performing his duties in cases where county counsel has a conflict.
As such, Rivero is seeking a writ ordering the board to hire him independent legal counsel in order to “assist him in dealing with the issues presented by the actions and pronouncement of the District Attorney.”
Anderson explains inquiry
Anderson’s filing explains that he began the inquiry into the shooting in early 2011. On or about March 9 of that year he received information from Michael Sobieraj, the deputy who had been on duty with Rivero during the shooting, that Rivero had lied during the incident’s subsequent investigation.
Anderson’s office currently is pursuing prosecutions in People v. Carrillo and People v. Johnson, which involve alleged Hells Angels’ members participation in a fight at Konocti Vista Casino in June 2011. Rivero became personally involved in the case when he went to the casino to get surveillance tapes that the casino wouldn’t turn over to his deputies.
Last September, Michael Clough, the attorney for Nicolas Carrillo, requested evidence that Brady v. Maryland requires be disclosed, Anderson’s declaration said.
The document explained that from Nov. 16 through Dec. 27 of last year, Anderson provided Rivero with the chance to appear before a committee headed by Anderson to offer his comments and objections pertaining to the disclosure. Anderson said he had not made a final determination during that time regarding the disclosure of the documents.
Anderson said he also offered to hold an informal meeting with Rivero to discuss the document disclosures. He said that meeting would offer Rivero the chance to submit documents on his behalf and have counsel present. Such a meeting, Anderson argued, does not interfere with Rivero’s investigatory duties as sheriff.
Board: Rivero mischaracterizes law, hasn’t exhausted available remedies
In the board’s response, it alleged that Rivero “misstates, mischaracterizes, and misapplies the laws of the State of California regarding the employment of legal counsel to assist the sheriff in the event of a conflict of interest,” argues that Rivero has not exhausted the administrative remedies available to him and that the ethical wall could resolve the representation issue.
In addition, the board argued that legal counsel for Rivero in an informal meeting with Anderson is unnecessary, and that a writ forcing the board to offer Rivero legal counsel “would compel an illegal act or a violation of duty by a public officer, and would tend to aid an unlawful purpose.”
Because the board argues that it holds “broad budgetary and nonbudgetary” powers over Rivero, it has concluded that the taxpayers would be better served if the county counsel provided him with representation.
“The chaos that would result if each agency of government were allowed to dictate to the legislative body the amount of money that should be appropriated to that agency, or its staffing and salary levels, is readily apparent,” the county argued.
The board’s statement argued that a hearing before a judge to determine if the ethical wall is appropriate is the proper step, not a writ of mandate, and is asking for Rivero’s writ to be denied and for the county to recover its costs from the proceedings.
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