LAKEPORT, Calif. – With the county's sheriff appealing a judge's ruling that he – and not the county – must pay attorney's fees incurred in a legal battle with the district attorney, on Tuesday the Board of Supervisors voted to transfer money from a sheriff's office fund to hire outside legal counsel.
Over the objections of Sheriff Frank Rivero, the board unanimously voted to transfer $10,000 from the sheriff-coroner's professional services account in order to hire an outside law firm in response to an appeal Rivero filed regarding a May ruling in his suit against the supervisors.
County Counsel Anita Grant told Lake County News that the outside firm's help was needed as her office's workload has significantly expanded and one of her senior attorneys is retiring this fall.
On Tuesday County Administrative Officer Matt Perry told the board that the professional services account had about $32,000 available, and could therefore be used as a source for legal fees.
In May, Mendocino County Judge Richard Henderson ruled that Rivero was responsible for paying legal fees that he ran up in fighting his placement on a “Brady” list of officers by District Attorney Don Anderson, who found that Rivero, while a deputy sheriff, had lied to investigators about a nonfatal February 2008 shooting.
Grant told Lake County News on Tuesday that the latest bill the county received on July 10 from the Jones and Mayer law firm of Fullerton, which is representing Rivero, totaled $70,303.03 through June 30.
At Tuesday's meeting Rivero said the funds in the professional services account were being used to do background checks for potential hires, and that some of it was already encumbered.
“I also oppose it on principal,” he said, adding that the board should either take the money out of its own funds or out of county counsel's rather that putting a burden on the sheriff's office.
“The other option would be not to burden the taxpayers and just withdraw your appeal,” said Supervisor Anthony Farrington.
“The other option would be to pay for services rendered,” Rivero replied, referring to his attorney fees.
But that's exactly what Henderson said he hadn't intended for the county to do.
Henderson's May decision was a clarification he made at the request of the Board of Supervisors. Last year Henderson – who found an ethical conflict existed with the County Counsel's Office – ordered the board to hire Rivero an attorney in response to Anderson's “Brady” investigation.
“Brady” comes from the 1963 US Supreme Court case Brady v. Maryland, which requires prosecutors to disclose to criminal defendants any potentially exculpatory material, including credibility issues of officers involved in their cases.
Anderson determined that Rivero had lied to sheriff's officials about not seeing pepper spray in a man's hand before shooting at him in February 2008. Witnesses at the scene recounted Rivero telling the man to drop the pepper spray before he discharged his weapon. The man was not hit.
Because pepper spray is not a lethal weapon, shooting at someone who possessed it was considered a violation of department protocol.
In February, Anderson made his final determination and placed Rivero on a “Brady” list of officers with credibility issues. Within days, Rivero began filing legal challenges to the decision, attempting to block Anderson's required disclosure to criminal defendants and the public. Those efforts failed.
Henderson said in his May ruling that it had not been his intention that the county continue to pay for Rivero's legal counsel past the point on Feb. 19 when the Brady determination was made.
On July 9 Rivero filed an appeal of Henderson's decision with the First District Court of Appeal, according to case filings.
Following the short but heated discussion between Rivero and the board – which followed a lengthy discussion on substations in Clearlake Oaks and Lower Lake – the board voted 5-0 to take the funds from the professional services budget.
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