ACLU supports Sonoma County legal challenge of labor board ruling against police oversight measure

A state labor board conducted a flawed legal review when it gutted a 2020 measure overwhelmingly approved by Sonoma County voters to bolster civilian oversight of the county Sheriff’s Office, the American Civil Liberties Union said in a court brief this week.

The ACLU, which favors stronger police oversight, is the latest entity to jump into the legal fight over Measure P, which began even before it was approved by almost two-thirds of voters in the November 2020 election.

Measure P sought to give the county’s independent law enforcement oversight office both greater powers and a significantly larger budget. It was opposed by Sheriff Mark Essick and two unions representing Sonoma County sheriff’s deputies.

The Public Employee Relations Board, an agency that adjudicates issues impacting local and state government employees, struck down parts of the measure last summer after it determined key components violated deputies’ collective bargaining rights.

The county appealed that ruling.

The amicus brief filed Tuesday in 1st District Court of Appeal by the ACLU’s Northern California affiliate, and joined by the local Committee for Law Enforcement Accountability Now, offers more information in support of the county’s appeal for the court’s consideration.

The case represents one of the ACLU’s first rebuttals against California law enforcement associations using labor law to push back against attempted police reform, according to Allyssa Victory, a staff attorney with ACLU of Northern California’s Criminal Justice Program, who drafted the brief.

“It’s one of the first where they’ve been able to impede countywide attempts at transparency and accountability and one of the first we’re getting involved in,” Victory said. “We really want to get involved and challenge the PERB decision because we don’t want it to become precedent for other counties.”

Sonoma County’s Independent Office of Law Enforcement Review and Outreach for most of its seven-year existence has operated on a relatively small budget and with a limited mission: auditing public complaints about the Sheriff’s Office and reviewing the department’s investigations into use of force and alleged misconduct.

Measure P gave the watchdog agency significantly more funding and power — including the authority to independently investigate and subpoena the Sheriff’s Office and recommend discipline of employees for misconduct.

The PERB ruling said those investigative and disciplinary powers could not be granted by voters without the county first conferring with labor unions representing deputies.

But PERB erred in that finding, according to the ACLU brief.

“The ultimate question, whether the county had to bargain with the sheriff’s union as a procedural step before even placing Measure P on the ballot — PERB did not follow all of the steps in the legal analysis it announced itself,” said Victory.

Specifically, PERB did not establish that Measure P would cause “significant and adverse” changes to working conditions at the Sheriff’s Office, she said. That’s necessary for PERB to prove that the sheriff’s deputies had a right to negotiate the measure’s terms with the Board of Supervisors before the vote.

If the ruling stands, IOLERO will not have the authority to conduct its own investigations of deputies, publish body camera footage, subpoena personnel records including prior complaints made against an officer, recommend discipline or sit in on interviews during internal affairs investigations.

Cody Ebert, president of the Sonoma County Deputy Sheriffs’ Association, which represents the rank and file membership of the largest law enforcement agency in the county, said in an email response to the brief that he “remains confident that the unanimous decision by the Public Employment Relations Board will be upheld by the court.”

The Sonoma County Law Enforcement Association, which represents correctional deputies, joined the deputy sheriff’s group in challenging Measure P at the state labor board.

Ebert also questioned the ACLU’s expertise in collective bargaining law. Victory acknowledged that while Tuesday’s brief is a unique intervention for her organization, the legal struggle over Measure P is of particular concern.

Sonoma County is one of the few in the state with an established sheriff’s oversight office. Measure P could provide a model of civilian oversight for other counties, Victory said.

“Many other counties are just getting underway and exploring that,” she said. “We do not want that to be the law if this were to be challenged by the labor board in other jurisdictions.”

Both Sonoma County and PERB can submit responses to the ACLU’s amicus brief.

“PERB has reviewed the filing by the ACLU and will file a legal brief where PERB will respond to the ACLU’s claim the Board did not follow the required analysis when it concluded the County violated state law by not first negotiating with the Associations about the changes to the manner in which it investigates and disciplines peace officers,” Felix De La Torre, a PERB attorney, told The Press Democrat in an email Thursday.

Measure P, which passed with nearly 65% of the vote in the wake of the summer protests against police brutality and racism that flooded the streets of Sonoma County and across the nation following the murder of George Floyd by a Minneapolis officer, increased IOLERO’s budget to 1% of the Sheriff’s Office’s, allowing it to hire additional staff.

Though it enjoyed strong support among activists, the measure was opposed by a powerful coalition of police labor groups, the Sonoma County Farm Bureau and public officials, including Sheriff Essick, who questioned its legality.

Seven months after it passed, PERB ruled the Board of Supervisors, which brought the measure to the ballot, should have negotiated its terms with the deputies’ unions beforehand. The agency claimed the unions were entitled to meet and confer on the measure because it substantially and negatively changed deputies’ working conditions.

In its summer appeal, the county pointed to the more than 166,000 Sonoma County residents who cast their vote in support of adopting the measure.

ACLU Amicus Brief

PERB Jan. 1, 2021 Brief

In response, PERB lawyers argued that Measure P’s changes to how the county investigates and disciplines officers “are material, substantial, and adverse to the affected employees.”

Expanding IOLERO's power beyond its current responsibilities — reviewing Sheriff’s Office internal affairs investigations and recommending policy changes — to the role envisioned by Measure P — conducting its own investigations into complaints and recommending discipline — creates a “parallel investigative scheme for County peace officers” that would directly impact their working conditions, according to PERB’s last court filing.

However, in its Tuesday brief, the ACLU took issue with the crux of PERB’s argument, that IOLERO’s new powers under Measure P would prove “adverse and significant” to deputies under the law.

Measure P did not introduce new rules for deputies, lower the burden of proof in misconduct investigations or heighten potential discipline, the ACLU said. Instead, it “merely instituted a new, independent fact-finder with regard to civilian complaints,” a neither significant nor adverse change.

The brief also recounted flashpoints in the local debate over police violence, including the 2013 killing of 13-year-old Andy Lopez by a sheriff’s deputy that precipitated IOLERO’s creation.

Measure P, the brief contended, introduced “the reforms necessary to begin to rectify the County’s lengthy history of excessive force, lack of accountability, and community mistrust,” including deaths of community members caused or contributed to by local law enforcement, other cases of officer violence and the “innumerable instances of harassment and racial discrimination.”

The brief concluded by urging the court to overturn PERB’s ruling in light of pubic interest and the Board of Supervisor’s authority to set policy.

Ebert, the deputies’ union president, called the ACLU’s claims “inflammatory language” and “false assertions” — in particular that the Sheriff’s Office imposed “significant violence,” “terrorized the community” and “frustrated efforts at accountability.”

“Such hyperbole also makes it harder to develop and maintain the community’s trust in law enforcement, including the lawful enactment of smart and effective law enforcement oversight. These are goals everybody — including the DSA — shares,” Ebert said.

IOLERO’s interim director Garrick Byers said that Tuesday’s filing was “a powerful statement of why the Board of Supervisors created IOLERO, of why the Board placed Measure P on the Sonoma County ballot, and of why the voters overwhelmingly approved Measure P.”

And NAACP of Sonoma County Vice President Kirstyne Lange said in a news release the brief “echoes the conclusions of multiple independent reviews of the Sheriff’s Office. … Measure P was a rational and necessary reform offered by the community to make IOLERO effective in providing oversight to the Sheriff’s Office.”

After the county and PERB review the brief and submit any responses, the court may then grant a request for a hearing on oral arguments and will reach its decision on the Measure P appeal.

You can reach Staff Writer Emily Wilder at 707-521-5337 or emily.wilder@pressdemocrat.com. On Twitter @vv1lder.