LAKEPORT, Calif. – Lake County's sheriff said he intends to take legal action to get the county to hire an outside attorney to represent him in a lawsuit after the Board of Supervisors on Tuesday denied the hiring request and instead asked him to use the services of the County Counsel's Office.
Sheriff Brian Martin went to the board to ask to hire outside counsel to represent him in a lawsuit filed in December by the Lake County Correctional Officers' Association, which is suing both the county and Martin in his official capacity citing breach of contract.
While Martin said he believes County Counsel Anita Grant is the finest attorney in the county, because she's the county's attorney he argued that a conflict of interest exists for Grant's office both due to the litigation and an agreement with the association that is at the heart of the lawsuit, which he said the County Counsel's Office helped craft.
Even if an “ethical wall” is used to try to separate matters involving the sheriff and the correctional officers, Martin argued that it wouldn't adequately represent him.
An ethical wall is a way of limiting the disclosure of information between attorneys in a law firm or agency such as the County Counsel's Office.
In October 2011, the county, including then-Sheriff Frank Rivero and the Board of Supervisors, and the association entered into a contract that guaranteed correctional officers the right to carry firearms at all times while on duty, except for within the jail facility.
That contract also guaranteed correctional officers the right to receive a concealed weapons permit within 30 days of application if they met the legal requirements, along with a waiving of all fees associated with the permit.
Martin told the board on Tuesday that the terms of the 2011 agreement – which had been the result of another lawsuit filed by the association against Rivero – and his strict interpretation of the law differ.
While the previous sheriff agreed that correctional officers are allowed to carry firearms at all times while on duty, “The law is simple in that matter. They are not,” said Martin.
The lawsuit said that in December 2015 Martin breached the contract by refusing to allow correctional officers to carry firearms at all times while on duty, except for when they were in the jail facility, and failing to waive all fees and costs ordinarily charged to concealed weapons permit holders.
Martin said his predecessor relinquished some of his discretionary ability in entering the agreement, explaining that, statutorily, the sheriff determines when correctional officers are authorized to carry firearms. Martin said he's also the decision maker as to who may be issued concealed weapons permits.
“This is just one of the many decisions he made that I simply don't agree with,” said Martin.
So Martin turned to Government Code section 31000.6, which says that, upon a request of the sheriff, the Board of Supervisors shall hire legal counsel to assist the sheriff in the performance of his duties in circumstances when the county counsel has a conflict of interest.
The matter of ethical walls and outside counsels for the sheriff is familiar territory for the board, as Rivero also had sought outside counsel to defend him in an investigation led by District Attorney Don Anderson.
Rivero, after the board turned him down, took the legal remedy of seeking an ex parte hearing before a judge, who ruled that an ethical wall wasn't sufficient and ordered the county to hire the attorney of Rivero's choosing.
On Tuesday, Martin cited that case and the fact that the court decided against the ethical wall. He pointed to additional factors that he said weighed in his favor, noting that Grant's office didn't have any input in Anderson's investigation of Rivero.
In the current case, Martin said the county counsel's involvement “is very clear” and a conflict of interest is apparent. He said that conflict denies him the ability to have the resources, zealous representation and legal support he needs.
He said he's spoken to a local attorney who is available to represent him in the case.
Grant told the board that she and Martin have discussed the matter, and while she respects his concerns, she believed an ethical wall could successfully be used.
Board Chair Jeff Smith said he thought it was worthwhile to try the ethical wall to start with and then, if it doesn't work, to pursue outside counsel. He added that the county has a great attorney in Grant.
Martin replied that the county has Grant as its attorney, he doesn't. “One of the factors is equal representation.”
He also noted during the discussion that he didn't feel his office's best interests were being represented, and he intended to take the next steps to address that, adding he disagreed that the ethical wall can be effective.
One of the options the board discussed was having county staff reach out to other county counsels for additional resources and help. Martin said that suggestion was an acknowledgement that the county counsel couldn't properly represent him, adding the board has a mandatory duty to provide him with the legal counsel he needs.
The board's two newest members, Tina Scott and Moke Simon, joined with Smith, Jim Steele and Rob Brown in deciding instead to pursue the ethical wall.
“I honestly believe we should give this a try,” said Brown.
“Sheriff, you're saying it's my way or the highway,” said Smith.
Martin maintained that he believed an irreconcilable conflict of interest that exists.
In her written report to the board, Grant had explained that if the board didn't agree with Martin, he could initiate an ex parte proceeding before the presiding judge of the Lake County Superior Court.
The judge would have to determine that a conflict actually exists and whether representation by the county counsel through the creation of an ethical wall is appropriate.
In making that ruling, Grant said the judge would need to consider several areas: equal representation, level of support, access to resources, zealous representation or any other consideration that relates to proper representation.
Brown asked Martin if he planned on taking that next step, and Martin said he did.
In taking its approach to the request, Brown said he didn't think the board was being punitive. Martin said he didn't take it as punitive, adding that he's trying to maintain the sanctity of his office.
The board ultimately voted unanimously to pursue the ethical wall with Grant's office.
Later on Tuesday, when contacted by Lake County News, Martin again indicated he planned to seek the ex parte review by a judge.
“That's the remedy that's available to me and I intend to pursue that remedy,” he said.
Martin said the law takes action like the board took on Tuesday into consideration. “My recourse is to petition the court and have a judge decide, so that's what we'll do.”
He didn't have a time frame for pursuing that action, and said he likely will hire an attorney specifically for that work. That attorney will probably be different from the one he's spoken to about representing him in the contractual dispute with the correctional officers. When asked who that local attorney is, Martin declined to name the individual.
With regard to the lawsuit, he said he has granted every concealed weapons permit that he's been legally able to, which he said is his prerogative.
Martin said he was concerned about the precedent the 2011 agreement set and explained that it could have impacts on future sheriffs if not addressed.
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