CLIENT ALERT MEMORANDUM
August 26, 1999
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
GRAND JURY CHARGES CHIEF – CHIEF CHARGES BACK
The Inyo County Grand Jury, pursuant to Government Code §3060, issued an accusatory pleading against Bishop Police Chief Bruce Dishion and Sergeant Larry Cox, charging each with various allegations of misfeasance or malfeasance in office. If any one of the allegations were sustained, the penalty would be removal from office. This is frequently utilized as part of the “civil watchdog” power given to local grand juries by statute. What made the instant case so unique was the manner in which Chief Dishion responded to these allegations.
The process, which is a civil proceeding rather than a criminal proceeding, still requires the taking of evidence by the grand jury, the reaching of findings and conclusions regarding misfeasance or malfeasance in office, the presentation of that evidence to the grand jury by the county’s District Attorney, and the determination that the alleged misconduct rises to the level which would call for removal from office, as opposed to internal administrative sanctions.
The City Council of the City of Bishop, based upon its knowledge of the Chief and the facts and circumstances surrounding the allegations (which were initiated by several members of the Department) basically rallied to the defense of the Chief. Recognizing that there might be some areas where improvement would be beneficial, the Council nonetheless believed none of the allegations raised by the Grand Jury justified removing the Chief from office.
The City Attorney, Peter E. Tracy, carried out the wishes of his client, the City Council, and actively pursued the defense of the Chief. This office had the honor of serving as co-counsel with Peter Tracy in the representation of Chief Dishion.
Our approach was to be very aggressive rather than passive in the defense of the Chief since it appeared from the outset that none of the allegations, even if true, warranted an accusation pursuant to GC §3060. Additionally, it became more and more apparent that there were major deficiencies with the process.
The County District Attorney withdrew from the process because he stated that there was no merit to it. A member of the Grand Jury, who was held in high standing, withdrew from the Jury rather than continue to participate in what turned out to be a sham process. Nonetheless, the power of the Grand Jury continued and the Jury retained outside counsel to represent its interests. The matter was ultimately handled by the office of the State Attorney General who, from the inception, reserved his right to continue to review the matter before reaching a conclusion.
Peter Tracy and I challenged not only the basis of the accusations, but the procedure as well. We brought an action to have the Superior Court Judge who would be presiding over this matter recuse himself based upon his participation in the process which appeared to create a bias.
As a result of our ultimately compelling the Judge to be recused, the matter was heard by a retired Judge from the 5th District Court of Appeal. The Court agreed with our arguments, namely, that if any and all of those allegations were proven to be true, they would not meet the requirements of the law which calls for deliberate and willful neglect of a mandatory obligation. Ultimately the office of the Attorney General also acquiesced. As a result, the efforts by the Grand Jury to remove Chief Dishion and Sergeant Cox failed.
Following the successful conclusion of this matter, I conferred with Chief Dishion and asked if he would allow me to share this information with the rest of you. He not only agreed, but he encouraged that we do so. He asked if we would convey that his message, if none other exists, is that you cannot be passive nor assume that the process will work as it was designed to work. You must plan for, anticipate, and defend against the potential worst case scenario, not the best.
The complexities of the role of Police Chief and/or Sheriff continue to grow. More and more members of the public are becoming vocal over concerns regarding the manner in which law enforcement agencies operate. The initiation of attacks upon Police Chiefs, in particular, may come from a variety of areas including anti-police members of the public, labor organizations, legitimate civil liberties groups, and others as well. It is because of the fact that the microscope is constantly turned on, that Police Chiefs must ensure, to the best of their ability, that their departments are functioning appropriately and within the confines of legal requirements.
There are additional burdens, responsibilities and obligations placed upon law enforcement personnel and law enforcement management than in any other area of the public sector; that is a fact. The use of experts, consultants, or attorneys to advise and guide the Police Chief and Sheriff in legal matters is as important as providing a resource with expertise, for example, in operational techniques. Law enforcement agencies, in this day and age, are severely limited by a myriad of laws, both statutory and case law. Not recognizing that fact is as dangerous as not recognizing the need for adequate equipment and support for your officers in the field.
This particular issue involving Chief Dishion and the City of Bishop, although extremely draining on the man as an individual, turned out well. The process brought forth issues which have already been addressed by the Chief, but the manner in which the situation was handled was uncalled for and highly suspect. The appropriate use of legal counsel at the beginning of one of these procedures is not only permitted but it is, in fact, imperative. Even if one is completely and totally “innocent” of any and all of the allegations, the procedure requires that you be guided through it safely. It has nothing to do with right or wrong, it has to do with working oneself through a legal maze that is extremely complicated and convoluted.
If any of you have any questions, or wish to discuss this in greater detail, you can not only feel free to call me at (562) 590-8280, but I know that Chief Bruce Dishion would be happy to discuss the circumstances with you as well. He can be contacted through the Bishop Police Department at (760) 873-5866.
MJM/ps
*********
1a-Vol14#11-bishop