Sonoma County sheriff says watchdog ballot measure is flawed, seeks legal advice

Sonoma County Sheriff Mark Essick said a law enforcement oversight measure heading to the ballot box in November is flawed and is seeking approval to spend money on an outside lawyer to advise him on the proposal, which would boost oversight of his department.

If approved by voters, the ordinance would give added powers to the Independent Office of Law Enforcement Review and Outreach, which audits investigations into allegations of misconduct against sheriff’s deputies.

Essick said that he supports the spirit of the ordinance and he criticized county supervisors for derailing a review that could have dealt with his concerns about the lawfulness of some of its provisions. Instead, supervisors voted to skirt that process last week and put it on the ballot.

“I need someone who can advise me on how to handle all these legal defects in this ordinance and to set a course of action,” Essick said.

Essick said that he is not sure if he will initiate a lawsuit and wants legal advice about how he should handle what he views as legal obstacles to complying with the ordinance, should it be voted into law.

The Sonoma County Deputy Sheriffs’ Association took a stronger stance Tuesday, announcing that is filing a lawsuit against the county over the ballot measure. The association, which represents deputies, alleged the county violated employees’ rights by failing to confer with the union about changes to their jobs.

The ordinance proposes to give the auditor greater access to evidence, body camera video and other records, including the power to subpoena witnesses. It would increase the budget for the auditor, setting it at 1% of the Sheriff’s Office’s annual budget.

The Deputy Sheriff’s Association also expressed support for the concepts of greater accountability in the ordinance but said the county was legally obligated to “meet and confer” with labor unions regarding some of the proposed changes, especially those surrounding internal investigations into deputy actions.

In a letter to the county counsel’s office, association President Mike Vail said that if “the County had complied with labor laws, the issues could have been addressed and allowed the ordinance to lawfully proceed for the voters’ consideration.”

“Unfortunately, the County’s disregard of basic legal requirements have left the DSA no choice but to pursue formal legal action to enforce its collective bargaining rights with the Public Employment Relations Board,” Vail said in the letter sent by the law firm Rains Lucia Stern St. Phalle & Silver.

Supervisors will consider Essick’s request Wednesday to spend up to $50,000 of his department’s budget to hire Fullerton law firm Jones and Mayer for counsel.

Essick said many of his concerns were also raised by the county counsel’s office in its analysis of the ordinance.

Essick questioned whether allowing a “third party” — the independent auditor — broad access to evidence during investigations could create legal challenges by defense attorneys in criminal prosecutions. He also said providing the auditor further access to internal affairs documents could violate state protections for law enforcement officers.

Among its concerns, the Deputy Sheriff’s Association questioned provisions giving the auditor a role in internal misconduct investigations and asked the county to consider the thorny question of what to do if the auditor and sheriff “disagree on whether a DSA member engaged in misconduct and proposed discipline.”

Karlene Navarro, director of the Independent Office of Law Enforcement Review and Outreach, who backed the measure, acknowledged that some of the provisions in the ordinance “do not have clear legal answers as to whether they are lawful or unlawful.”

“However, not having a clear legal answer is not uncommon when new laws are passed and many new laws that pass by voters or legislators end up in court,” Navarro said in an email.

She said the goal was “to prevent biased and excessive use of force by law enforcement in Sonoma County.“

The ordinance is named after the late Sonoma County restaurateur and justice advocate Evelyn Cheatham, who was an instrumental member of the community task force that drew up the initial plans creating the foundation of IOLERO, founded five years ago.

The ordinance to strengthen the oversight program Cheatham helped create was drafted last year by community activists including Navarro’s predecessor, Jerry Threet. After Cheatham’s sudden death to an illness in October, it was revised to honor her community contributions.

Essick said the ordinance revives concepts ruled out years ago by the original task force because they violate existing state laws governing how law enforcement agencies operate. He criticized the supervisors’ decision to halt the process that could have addressed problems before voters are asked to approve it.

“I think it’s salvageable, I most certainly do,” Essick said.

Supervisor Lynda Hopkins defended the board’s decision to put the measure on the ballot as setting “democracy back on course” because the COVID-19 pandemic halted community efforts to gather enough signatures to put it on the ballot.

“I am proud of the level of transparency around our decision. We held conversations in public, listened to the community,” Hopkins said.

The proposed ordinance includes a provision giving the office’s director, Navarro, subpoena power to compel the Sheriff’s Office to share records. That is not currently permitted in the county. Proposed legislation, Assembly Bill 1185, would give counties the power to grant this authority to oversight boards or inspectors general.

Hopkins said she expects the Legislature to approve AB 1185 before the county ordinance would take effect, if it is approved by voters.

Essick described his request to hire outside counsel as a technical step required when the county counsel’s office cannot represent different branches of government on the same matter.

County Counsel Bruce Goldstein said his office determined it could not advise the Sheriff’s Office on the matter because “there was the possibility of different interests between the Board, Sheriff, and independent IOLERO Director.”

“To avoid even the appearance of conflict we used our standard conflict procedure,” Goldstein said in an email.

“The overall idea of being accountable to the public as a peace officer is very important to me,” Essick said. “We exercise great authority as peace officers and with that authority comes great responsibility.”

You can reach Staff Writer Julie Johnson at 707-521-5220 or julie.johnson@pressdemocrat.com. On Twitter @jjpressdem.