Vol. 27 No. 16 – Court Orders Board to Provide Independent Legal Counsel to Sheriff.


We are very pleased to report that a Superior Court Judge, sitting by assignment from another county,[1] has ordered the Lake County Board of Supervisors to pay for independent legal counsel for Sheriff Frank Rivero to assist him in an official matter in which the County Counsel had, quite properly, declared a conflict of interest.

Although a superior court ruling applies only to the parties involved [Sheriff Rivero and Lake County], we are very pleased with the decision of the court and its in-depth analysis of the law.  The decision itself is too voluminous to include with this Alert.

However, a copy can be provided via e-mail if anyone wishes to review this in greater depth or perhaps provide it to their own county counsel.

In addition to the victory on the law, the court, on its own, ordered the county to reimburse the sheriff for all of his legal fees and costs incurred in this proceeding. This was an outcome about which County Counsel had expressly cautioned this Board of Supervisors, in open session.

Gov. Code §31000.6 is relatively new legislation.  It has been amended and strengthened to also protect sheriffs after they retire, if a relevant issue arises from when they were in office.  Both the original legislation, and the amendment, was the direct result of CSSA’s Legislative Advocate Nick Warner’s efforts in securing support for this legislation.

Before Gov. Code 31000.6

Prior to the passage of 31000.6, sheriffs were left to “twist in the wind” if they were involved in a dispute where the county counsel could not represent them.  Under this legislation the sheriff is entitled to declare a conflict of interest and be provided with independent counsel, responsible only to the sheriff, but compensated by the county.

It is also important to note, that the court found that the Sheriff had done all of those things he needed to do under the law as conditions precedent to his right to bring the legal action enforcing §31000.6.  The Sheriff asked County Counsel for assistance; County Counsel declared a conflict of interest; and the Sheriff promptly made formal written request of the Board for appointment of independent legal counsel.

Finally, we want to credit County Counsel Anita Grant for her integrity throughout this process. She knew that the conflict existed and that neither she, nor her understandably small office of attorneys, could provide the necessary representation. She informed her Board, in open session, that because of her inability to represent the Sheriff, in the case at issue, the Board was obligated to provide him with independent counsel.

The Board elected to ignore Ms. Grant’s advice and deny the Sheriff his request for an attorney. At first, we attempted to resolve the matter informally, which would have eliminated the need for litigation. Unfortunately, the Board was unwilling to acknowledge the law and, for that reason only, we were compelled to file a writ petition on behalf of the Sheriff.

As always, it is imperative for public entities and officials to seek advice and guidance from their legal counsel on matters such as these.  If you wish to discuss this case in greater detail, please don’t hesitate to contact us at (714) 446 -1400 or via e-mail at prc@jones-mayer.com or mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.

[1] The entire bench for Lake County Superior Court had recused itself from hearing the case.