LAKEPORT, Calif. – The Board of Supervisors on Tuesday discussed what actions to take next in the legal battle between the sheriff and district attorney, with the legal costs the county has been forced to undertake for the sheriff quickly escalating.
In the end, the board voted to defer a $29,600 bill from the Southern California-based Jones and Mayer law firm.
The supervisors also directed County Counsel Anita Grant to ask a judge for clarification on how much more money the county must spend as Sheriff Frank Rivero fights District Attorney Don Anderson’s determination that he be placed on a list of officers with credibility issues.
Last month, at the end of a lengthy investigation, Anderson concluded that Rivero had lied about his actions during a February 2008 incident in which he shot at – but missed – a man holding a can of pepper spray, a violation of sheriff’s department policy, as Lake County News has reported.
Anderson is required under the 1963 US Supreme Court decision to release any such potentially exculpatory evidence – including information about credibility issues of officers involved in cases – to criminal defendants.
Last year a visiting Mendocino County judge ordered the county to pay for outside counsel for Rivero after determining that a conflict of interest for County Counsel Anita Grant’s office couldn’t be overcome with an ethical wall.
After Anderson made his finding on Feb. 19, Rivero filed an application for a restraining order against Anderson and also filed to seek a writ of mandate and preliminary injunction to prevent him from releasing the findings either publicly or to criminal defendants.
In a March 4 hearing, retired Butte County Superior Court Judge William Lamb denied the restraining order application, ordered the documents relating to the finding to be unsealed and the court hearing to remain open to the public after Rivero sought to have the matter taken out of the public view.
However, Lamb allowed that Rivero could continue to pursue a temporary injunction. Anderson told Lake County News on Tuesday that he was not aware of a date yet being set for that proceeding.
On Tuesday Grant updated the board on the situation. Rivero, who was in the courthouse on an unrelated private matter, was not present for the discussion.
In her memo, Grant explained that the judge’s order for legal representation required the county to provide the counsel and advice to Rivero in his deliberations with Anderson concerning the Brady investigation.
“The bottom line here is that the sheriff and his counsel contend that that further representation is required pursuant to the court order and that failure to do so would result in your board being in contempt of court,” said Grant.
She offered the board three options: paying the bill, denying it, or paying it under protest and directing staff to initiate legal proceedings to get clarification on the scope of the court ruling and whether it extends beyond Anderson to encompass Rivero’s current suit.
“I have been receiving calls from citizens that are absolutely tired of this situation, that they are absolutely fed up with it, and I would say that this board is, too,” said Supervisor Denise Rushing. “It’s too bad that this is what we’re working on. It’s too bad that we have to spend any time on this at all.”
Rushing supported paying the bill under protest and having Grant get clarification from the court, seeing no other workable options.
Supervisor Rob Brown said he also didn’t like the options, and appreciated that Grant was being cautious.
“Just like you, Denise, I’m sick and tired of this guy and his problems, and all of his whining about being a victim on everything,” Brown said. “I’ve just had a belly full of it.”
Supervisor Jim Comstock, who from the beginning has, like Brown, opposed paying any legal fees for Rivero, wanted to deny payment.
Brown pointed to all of the effort and taxpayer expense that has gone into the situation. “The sheriff is upstairs right now in court on a personal matter with his girlfriend. He’s not even doing his job and we’re still paying this guy, plus dealing with all of his problems down here. I think the folks in Lake County deserve better than that and I think they’ve had a belly full of it.”
“Totally agree,” said Comstock.
Board Chair Jeff Smith said he felt they needed to deny payment, but also wanted to have Grant get guidance from a judge.
Regarding the Brady determination, Smith said, “From what I’ve heard and understand, it’s something that’s not appealable, the district attorney has the last say.”
If it’s not appealable, he questioned why the county should have to continue to pay Rivero’s legal fees.
Supervisor Anthony Farrington asked Grant to explain the total amount the county has spent so far.
The county, she said, had to pay about $14,000 after the judge ordered payment for Rivero’s legal counsel last year. With an additional $6,500 contract with Jones and Mayer reached last fall, that brought it up to about $21,000. On Feb. 19, the board added another $2,000 to the Jones and Mayer contract to cover an overrun of less than $200, bringing the total to $23,000.
Then Jones and Mayer submitted the latest bill for an additional $29,600. If the county pays it, Grant said it will bring the total paid so far in the Rivero matter to $52,000.
The board sat silent for a moment, then Farrington suddenly laughed. “That jumped real quick,” he said.
“We can hire a deputy for a year for that,” said Brown.
Farrington asked Grant if the money came from the general fund. She said the board would have to identify the source of the funds, but it was not covered by insurance.
Smith suggested a fourth option, holding off on payment until getting an order from the court.
Given the threat from Rivero and his counsel, “You may risk a concurrent contempt proceeding,” said Grant.
She said they could consider that fourth option. Smith said otherwise, if they paid the money, it was gone and how could they get it back later.
“You’d be looking at getting it back from, most likely, the sheriff,” Grant replied.
“Good luck with that,” said Comstock.
Rushing added, “That would be interesting.”
“That would probably end up looking like discrimination or something by the time he got done with it,” Brown said of Rivero. “That’s the way he looks at everything.”
Grant said they could apply as soon as humanly possible for the court clarification.
“Here’s the other risk that we have. We approve this, there’s going to be another bill coming soon. I mean, it’s not going to end here,” said Brown.
He said that Rivero has indicated that he’s prepared to go all the way to the United States Supreme Court “because it’s about him.”
Brown said they were dealing with a guy who blatantly committed a felony in court last week by appearing armed before a judge in a matter to which he was a party, which violates Penal Code Section 171(b), which applies to law enforcement officers. Brown said when he notified Rivero of that fact, Rivero replied with an email that said he was exempt from the law.
“He doesn’t believe the rules apply to him, and that’s what we’re dealing with,” Brown said.
Comstock asked about the sanction the board would face if the court found it in contempt. Grant said it would be monetary.
Grant suggested they had some time before having to pay the latest bill – which came in on Monday – and that would give her the opportunity to seek the court’s clarification.
Farrington said there comes a point where one has to stand firm; he said he could see the costs reaching into the hundreds of thousands of dollars.
Rushing said they were navigating difficult waters. “It could cost us a lot of money if we do it wrong.”
“I support that we defer payment at this time until we get clarification,” said Comstock, which Brown seconded.
Finley resident Phil Murphy said he hated seeing taxpayer dollars wasted, and suggested that Anderson was at fault for pursuing the matter.
He acknowledged that the Brady list of officers with credibility issues has an important purpose, but as he attempted to continue discussing the Brady matter specifically, the board told him that was not the matter at hand.
Brown said whether Murphy agreed with Anderson or not, Anderson had a job to do, and the board was not there to decide if Anderson did his job right.
The Brady list does have a purpose, said Brown, and there is a very easy way to avoid being on it, “and that is to not be a liar.”
“Well …,” Murphy said before Grant warned they were straying off the agenda topic.
Former sheriff’s detective Tom Andrews asked for clarification on whether the Brady determination was appealable.
Grant said that issue is now being tested by Rivero’s legal action, and should be decided by a court.
She said some legislation has been proffered by the Peace Officers Research Association of California – or PORAC – and others to offer some due process rights to officers in the deliberations, but an appeal so far has been untested.
Andrews said it seemed that the county had carried out its responsibilities ordered by the court, and he encouraged them not to pay another dime until the court orders it.
Smith said there are many interested parties like PORAC and sheriff’s associations, and he said he would think they would jump on board to help defend Rivero if the matter were appealable.
“I think there’s other alternatives out there to get to the end of this,” Smith said.
The board voted 5-0 to support Comstock’s motion to defer payment until the court offers guidance on the limit of the board’s requirements to provide Rivero with counsel.
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.