LAKEPORT, Calif. – The Board of Supervisors voted 5-0 Tuesday to direct county counsel to analyze if her office could alleviate a conflict of interest and represent the sheriff in a dispute with the district attorney, but by day’s end the sheriff had notified the board that he would not agree to that plan.
The matter, held over from an initial discussion at the board’s Feb. 14 meeting, relates to Sheriff Frank Rivero’s request for legal counsel in light of District Attorney Don Anderson’s investigation into a 2008 shooting in which Rivero shot at a man who turned out to be unarmed.
County Counsel Anita Grant told the board that she believes her office has a conflict of interest in the matter, since both Rivero and Anderson are elected officials with adverse interests, and that the sheriff has a right to request legal counsel under Government Code Section 31000.6 in such cases.
District Attorney Don Anderson had reportedly offered to waive the conflict of interest issue in order to allow Grant to pursue creating an “ethical wall” – described as a zone of no communication or separation in order for an agency to represent two clients with adverse interests – to allow one of Grant’s staff to represent Rivero in the matter.
However, late Tuesday Grant informed administrative staff and the board chair that she had been contacted by an attorney representing Rivero, who was refusing to sign a waiver regarding the conflict of interest.
She suggested the matter be placed on next week’s agenda so it could be resolved.
Anderson, according to Grant, is waiting for a resolution in order to move forward with his investigation of Rivero and the 2008 shooting, for which Rivero gave conflicting accounts to investigators regarding seeing pepper spray in the suspect’s hand.
Grant told the board Tuesday that Anderson is planning a panel review as part of the proceedings – which she said will be similar to a hearing – and will hold it before any final determination is made.
Rivero will be invited to make an appearance, said Grant, but Rivero told the board he would not appear before that panel, which he called a “star chamber.”
Rivero told the board in both Tuesday’s meeting and the Feb. 14 meeting that his ability to act as sheriff could be harmed as a result of Anderson’s investigation.
Last week Rivero told the board that the 2008 shooting investigation had been closed. On Tuesday, Board Chair Rob Brown said that based on his research of the situation an investigation into the potential criminal aspect of the shooting – involving the question of use of excessive force – had been closed, but other aspects of it were never closed, adding, “In fact, it was not open until recently.”
Supervisor Jeff Smith, who was not at the Feb. 14 meeting but watched a recording of it in order to participate in the Tuesday discussion, referenced Rivero’s previous comments about the “expected outcome” of Anderson’s investigation. Smith asked if Rivero actually was asking for an intervention.
“It’s not an intervention, it’s a defense,” said Rivero, adding that Anderson has used taxpayer funds to investigate him on other matters, some of which were decided in Rivero’s favor.
Brown said the board does not get involved in District Attorney’s Office investigations for anyone. Referring to investigations that came out in Rivero’s favor, Brown said that shows the system works.
Brown said a cloud now exists because of the situation. “Get rid of that cloud by allowing this to happen,” he said of the investigation.
Brown told Rivero that he was aware that he kept injecting himself into the life of the man he shot at in 2008, and pointed out Rivero had given testimony in a custody hearing last August. Rivero replied that he was under subpoena to testify.
Rivero told the board during the meeting, “I wouldn’t be sitting here in the first place with these allegations against me if I wasn’t sheriff.”
Supervisor Denise Rushing said she also believed the issue wouldn’t have arisen if Rivero was still a deputy, and he deserved representation, however, “We should not write a blank check.”
Grant told the board that normally this kind of an investigation doesn’t take “quite the route it’s taking in this particular case,” and added it would be appropriate for the board to consider monitoring expenditures for legal counsel if it decided to approve Rivero’s request.
Smith worried that the matter could “snowball real easily,” and asked Rivero if an attorney would get involved with attempting to change the investigation’s course.
“The answer is no, we’re not trying to change the course of the investigation,” but to protect his rights, said Rivero.
Rivero said he was trying to prevent Anderson from overstepping his legal authority as district attorney, and had no intent or desire to prevent or preclude the investigation. “In fact, I welcome it.”
Supervisor Anthony Farrington suggested there should be an ex parte proceeding in which a judge determined if the county counsel had a conflict and an ethical wall was needed, which are provided for under Government Code Section 31000.6.
It was Farrington who informed the board that, during a conversation with Anderson, the district attorney agreed to pursuing an ethical wall and would sign a waiver to that effect.
Grant said she was reluctant to have a matter of professional conflict put before a judge, as she has a legal obligation to determine such a conflict on her own accord.
She said she hadn’t known Anderson would accept an ethical wall, and she could consider setting up such a wall and having one of her staffers represent Rivero.
But she said there was a conflict that would have to be the subject of a written waiver, adding, “I am not going to be clever with legal ethics.”
If Anderson continued his proceedings, Smith wanted to know what part of his job Rivero wouldn’t be able to do.
“All of it,” said Rivero, adding that it would harm the public’s trust in him.
“I’ve done nothing wrong,” Rivero told the board. “Right now my name is under this cloud.”
Rivero said the matter can’t be completely aired publicly, but he said it has ramifications not just for him but for law enforcement in general.
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