SHERIFFS AND ATTORNEY’S FEES- THE LATEST DECISION
October 27, 2006
As many of you will recall, the Kern County Board of Supervisors sued retired Sheriff Carl Sparks (2 ½ years after his retirement) alleging that he had filed false claims when he authorized premium pay for various commanders in his department. The premium pay was granted when additional responsibilities were undertaken. The Board of Supervisors claimed that without its prior approval, the Sheriff had no authority to do so and sued him alleging violations of the California False Claims Act. At the completion of the County’s case, the Superior Court granted the Sheriff’s Motion for a Directed Verdict and dismissed the County’s lawsuit, stating that the County did not prove the facts or the law needed to support an allegation that the Sheriff filed false claims.
At the early stages of the litigation, as counsel for Sheriff Sparks, we asked the Superior Court to declare that Sheriff Sparks was entitled to independent legal counsel paid for by the County, pursuant to Government Code §31000.6, to defend against these charges. The Court denied that application stating the intent of the language was to provide independent counsel for theincumbent Sheriff, when he or she had a conflict with the County Counsel , in order to assist the Sheriff in carrying out his or her duties. The Court indicated that once a Sheriff retired he or she is no longer obligated to carry out duties of the office and, therefore, was not entitled to the appointment of counsel pursuant to that section.
That decision was appealed and the California Court of Appeal has just ruled, in the case ofSparks vs. Kern County, that the Superior Court was correct. The Court of Appeal reiterated that the plain reading of the language implies the appointment of independent counsel for an incumbent Sheriff only. Although the decision of the Court of Appeal was, obviously, a disappointment, it was not a surprise.
We all recognized that the language on its face was clear but we believed that the intent of the Legislature was to provide the right to independent legal counsel to a Sheriff for matters arising out of the course and scope of his or her employment even after retirement. In the instant case, Kern County was completely aware that the Sheriff was authorizing premium pay, and had done so during the entire twelve years of his tenure, but deliberately waited until after he had retired before bringing litigation against him. It is unquestionable that, if the Board had sued Sheriff Sparks while he was still in office, he would have been protected pursuant to 31000.6 and independent legal counsel would have been appointed.
It was our argument that, just because a Board of Supervisors waits for the day after a Sheriff retires to initiate a lawsuit, it was illogical, inequitable and unreasonable to deny the Sheriff the legal protection he or she would have been entitled to receive had the lawsuit been brought while the Sheriff was still in office. Unfortunately, the Court of Appeal did not agree.
As a result of the awareness of this “loophole” in the law, however, the California State Sheriff’s Association sponsored legislation to extend that coverage to sheriffs who had left office, if they would have been entitled to the coverage while still in office. That legislation passed and was signed into law as emergency legislation by Governor Arnold Schwarzenegger as AB 2715 Chaptered September 22, 2006.
We argued that the Court of Appeal should apply the amendment to Sheriff Sparks but, the Court of Appeal stated it did not have enough factual information to determine whether or not the amendment would have applied in the Sparks case and, therefore, did not rule on that aspect of the lawsuit.
HOW THIS AFFECTS YOUR AGENCY
In reality this case has no impact upon an incumbent sheriff but the amended legislation does. Again, through the efforts of CSSA, Government Code §31000.6 now protects sheriffs who have left office if they are subsequently sued for actions taken, within the course and scope of their employment, while they held the office of sheriff. As such, and because of this amendment, no future sheriff will face the potential financial disaster which confronted Carl Sparks. Sheriff Sparks believed that he had a legal, moral and ethical obligation to defend himself against what was, ultimately, proven to be malicious, meaningless allegations of misconduct brought by the Board of Supervisors. It is unfortunate and ironic that Sheriff Sparks cannot benefit from a law which was initiated due to the adverse actions taken against him.
Should you have any questions or wish to discuss this matter in greater detail, please do not hesitate to contact me at 714- 446-1400 or by e-mail at mjm@jones-mayer.com.