On January 6, 2015, the California Court of Appeal ordered that good cause existed to publish the case of Rivero v. Lake County Board of Supervisors. The case involved a dispute between the Lake County Sheriff and the District Attorney, wherein the DA notified the Sheriff of his intent to declare him a “Brady” officer from an OIS which had occurred five years before and which had been fully investigated at the time.

When the Sheriff asked the County Counsel for legal advice and representation, the County Counsel declared a conflict since she served as counsel to both the Sheriff and the DA. She then informed the Board of Supervisors that the Sheriff was entitled to independent legal counsel, at the expense of the county, pursuant to Gov Code 31000.6. Unfortunately, “(d)espite county counsel’s recommendation for appointment of counsel, the board of supervisors denied [the Sheriffs] request.”

The Sheriff “filed a petition for writ of mandate pursuant to Code of Civil Procedure section 1085 seeking to compel the county to appoint independent counsel for him. [The Sheriff] subsequently filed an amended petition for writ of mandate [and] prayed that the court issue a writ ordering the board of supervisors ‘to comply with its statutory duty to contract with and employ legal counsel to assist [the Sheriff] in the performance of his duties. . ..'”

The trial court found that the Sheriff was entitled to representation, having met the requirements set forth in 31000.6. Counsel was appointed and the matter proceeded. In time, it became apparent that the Sheriff would need to challenge the DA’s actions in court. [JONES & MAYER represented the Sheriff in securing the protections afforded by Gov Code 31000.6 and was then appointed as independent counsel in the Sheriff’s dispute with the District Attorney.]

Approximately one year after the court ruled in favor of the Sheriff, the county went back to the trial court and asked it to “clarify” its original ruling that the Sheriff was entitled to independent legal counsel. “In a May 2013 order, the court granted the county’s motion for clarification,” basically stating that it had intended to limit the Sheriff’s right of representation to informal meetings with the DA, but not to allow the Sheriff to challenge the DA’s actions in court.

The Sheriff appealed the trial court’s “clarification” and the Court of Appeal reversed stating that the Sheriff’s “right to independent counsel should have extended to a legal challenge to the district attorney’s designation of the sheriff as a Brady officer while [he] served as sheriff. We direct the judgment to be modified accordingly.”


The Court of Appeal declared that there was no dispute that the Sheriff was entitled to independent legal counsel to represent him in his dispute with the District Attorney. “The sole issue raised on appeal is whether the trial court erred in limiting the scope of representation provided to [the Sheriff] pursuant to section 31000.6?”

The Court of Appeal cited to the only other published decision involving 31000.6, Strong v. Sutter County Board of Supervisors (2010) 188 Cal.App.4th 482. In Strong, the Court of Appeal held that, “Section 31000.6, subdivision (a) requires the board of supervisors to employ legal counsel for the assessor or sheriff ‘in any case’ where the requirements of the statute are met. ‘Necessarily, in deciding whether the board of supervisors had a duty to employ independent counsel for the [sheriff or] assessor under subdivision (a) of section 31000.6, the court would have to decide whether the purposefor which the [sheriff or] assessor seeks independent counsel is within the scope of his duties, because the duty arises only when that condition is satisfied.” (Emphasis in original.)

Finding that the purpose of retaining independent counsel was for actions within the course and scope of the Sheriff’s duties, “it was error for the trial court to restrict [the Sheriff’s] right to independent counsel to the period before the district attorney made its determination to list [the Sheriff] as aBrady officer. The limitation imposed by the court did more than simply define the dispute for which representation was to be provided; it restricted the legal options available to independent counsel in representing the sheriff in that dispute.”


Obviously, this case affects only California’s sheriffs (and assessors) but is significant because it clarifies the protections afforded sheriffs pursuant to 31000.6. As long as the criteria of the section have been met, neither the board, nor a court, can limit the scope of representation provided by the independent counsel. That attorney’s duty is to the Sheriff — not to the board — and decisions regarding the legal process rest with the attorney and his/her client — the Sheriff.

As noted above, Strong v. Sutter County was the only published case interpreting 31000.6 and it was limited to identifying the role of the presiding judge when ruling on whether or not 31000.6 applied. Publication of this decision provides all sheriffs and counties, throughout the state, with guidance on the role of the independent counsel, once one has been appointed. The impact of this decision cannot be overstated.

It should be noted that it is extremely rare for a Sheriff to have to invoke 31000.6. County attorneys know when a conflict exists between the Sheriff and the board. Their legal duty is to represent the board and they cannot represent the interests of the Sheriff, as well. In this case, it was the board which precipitated this litigation, and the trial judge was in error in granting their motion for “clarification.” This decision should put that issue at rest.

As we consistently note, it is imperative that you seek out and secure advice and guidance from your agency’s legal counsel when applying the law.  However, as always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446-1400 or via email at mjm@jones-mayer.com.


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