LAKEPORT, Calif. – A visiting judge is expected to decide within the next three weeks whether the sheriff is entitled to have the county pay for legal counsel to advise him relating to an investigation into his credibility.
Visiting Mendocino County Judge Richard Henderson presided over an hour-long hearing in the matter, filed by Sheriff Frank Rivero against the Lake County Board of Supervisors, on Friday afternoon in Lake County Superior Court Department 3.
In March, the Board of Supervisors voted against hiring Rivero an outside attorney, which Rivero argued he was entitled to under California government code.
Later that month, Rivero filed a writ against the board seeking to force the county to pay for his legal representation. He’s also seeking an unspecified amount of legal costs.
Rivero’s request for legal representation is in response to District Attorney Don Anderson’s investigation into allegations that Rivero had lied during an investigation into a February 2008 incident in which he shot at a man with pepper spray while working as a sheriff’s deputy.
According to documents Lake County News received through a Public Records Act request, Anderson is considering giving Rivero a “Brady” letter, which would establish that he has credibility issues and could keep him off the stand in criminal cases.
Under case law that developed as a result of the 1963 U.S. Supreme Court case Brady v. Maryland, a prosecutor must divulge all potentially exculpatory evidence to defendants in criminal cases. That includes information that could impugn the credibility of witnesses, including law enforcement officers.
Because of that requirement, and Rivero’s involvement in a criminal case regarding an alleged gang fight involving Hells Angels in June 2011, Anderson must make a final decision on Rivero’s Brady matter.
As a result of Anderson’s pending decision, Rivero went to the board, asserting that under Government Code Section 31000.6 the Board of Supervisors is statutorily obligated to provide him an attorney to advise him in the matter.
That code states, in part, “Upon request of the assessor or the sheriff of the county, the board of supervisors shall contract with and employ legal counsel to assist the assessor or the sheriff in the performance of his or her duties in any case where the county counsel or the district attorney would have a conflict of interest in representing the assessor or the sheriff.”
The board had directed the County Counsel’s Office to erect an “ethical wall” in order to allow one of the department’s staffers to represent Rivero. Rivero, however, would not accept that representation, maintaining that the office had a conflict of interest.
Arguing the statutory requirements
At Friday’s hearing, Rivero – wearing his sheriff’s uniform – sat beside his attorney, Paul Coble of the Jones & Mayer law firm.
The county was represented by Deputy County Counsel Lloyd Guintivano. Anderson and Board Chair Rob Brown were present for the hearing, as they had expected o testify. However, no one was called to the stand during the hearing.
Guintivano and Coble argued before Henderson over whether the board was required by state government code to provide Rivero with an attorney.
Coble said the law required the board to provide legal counsel to the sheriff when necessary to assist him in carrying out his duties.
“So once it’s established that the need for legal counsel is there and the county counsel is conflicted out, once those facts are there the board doesn’t have discretion,” Coble said.
On the matter of Rivero’s petition for a writ to get the board to hire him an attorney, Henderson wanted the attorneys to discuss the specific nature of the issue on which Rivero is seeking legal advice, and he also wanted to know how actions taken by the district attorney would affect Rivero in his performance.
Coble said the district attorney’s concern relates to a pending criminal prosecution, in which he may need to disclose to the defense what “may be a lack of credibility” on Rivero’s part.
He said Anderson has invited Rivero to be heard on the matter, and up through the end of last year he had planned to convene a panel of district attorneys from outside of the county to decide the matter. More recently, Anderson has decided to settle the matter himself.
In order to have the ability to dissuade Anderson from taking action against him, “The sheriff needs legal counsel,” Coble said.
If Anderson decides that Rivero has credibility issues, “It not only does not end with a single case, it cannot end with a single case,” Coble said.
Anderson’s decision could impact Rivero’s longterm relationship with his staff, Coble said. In a rural county like Lake, a sheriff can be expected to respond to crime scenes and incidents.
He suggested a scenario in which the sheriff would have to refuse to handle a call because he couldn’t testify in court. “That’s the ongoing impact that it has.”
Coble said the supervisors had a mandatory duty, “not an exercise in budgetary discretion,” to provide Rivero with an outside attorney.
“I respect the fact that Mr. Anderson has been holding off on his decision. It's a very necessary decision in this pending prosecution,” said Coble.
While he has a differing view than Anderson on what that decision ultimately should be, “We all agree he has a decision to make,” Coble said.
He said Anderson was getting “out on a limb” in terms of the case’s timeline, and asked the court to make a decision as rapidly as possible.
Guintivano argued that Rivero’s need for outside legal counsel had become moot since Anderson was no longer planning to convene a panel, but instead was proposing a meeting between he and Rivero.
Guintivano said it also was important to note that the district attorney has the exclusive duty to determine Brady disclosures, and he was extending the meeting offer to Rivero as a courtesy.
“This issue has now been mooted by the district attorney’s change in position,” he said.
The meeting Anderson is proposing would not prevent or impede any of Rivero’s duties as sheriff, Guintivano said. Rivero would not lose any of his powers, his peace officer status or ability to testify.
The Board of Supervisors decided that Rivero did not need outside legal representation because of the ethical wall alternative, Guintivano said.
Judge Henderson asked if County Counsel Anita Grant advised the board during its March 6 meeting that her office had the ability to erect an ethical wall and represent the sheriff.
“The county and the board explored that option,” Guintivano said.
He said that the county now only has this proposal from Anderson to meet with Rivero. Guintivano suggested the court could open up a slippery slope if it determined legal counsel was needed merely for meetings between department heads.
Potential for a ‘profound and lasting effect’
Coble said the board’s decision to deny Rivero outside legal counsel came months after Anderson decided not to use the Brady panel. He said Rivero made the request after the panel was dropped.
“We still have a situation where this sheriff, who I’ll represent to the court is not a member of the bar, is being offered a meeting with a member of the bar and one of the top two attorneys in the county,” said Coble.
The result, he said, would have a “profound and lasting effect” on Rivero’s ability to do his job.
Coble said the government code doesn’t include meeting scenarios, but addresses the need for legal assistance regarding official duties. He said the proposed meeting between Rivero and Anderson would address the sheriff’s ability to testify in court.
In the board’s March 6 meeting, Grant did not tell supervisors to let her handle the case, but suggested they hire Rivero an attorney, Coble said. He said Grant said there was nothing to stop a small office from erecting an ethical wall, but she acknowledged a conflict of interest.
Henderson asked whether the panel or the private meeting with Anderson ultimately would have the same affect on Rivero.
Guintivano said what’s currently proposed would involve a discussion between the district attorney and sheriff, avoiding the due process concerns that had arisen regarding the panel. What ultimately might happen was speculation.
“The sheriff will still be able to testify in court, regardless of the outcome, and we’re not even there yet,” Guintivano said.
Coble ended by telling the court that while he was grateful that the district attorney was offering to give Rivero the chance to be heard, “for him to be heard he needs the assistance of legal counsel before the bell is rung, not afterwards.”
Judge Henderson said he would try to get the decision out as quickly as he can, estimating it would be complete within two to three weeks.
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