LAKE COUNTY, Calif. – A judge has granted Lake County’s sheriff a writ of mandate against the county of Lake after the Board of Supervisors earlier this year refused to hire him legal counsel in response to an investigation into his credibility.
Mendocino County Judge Richard Henderson’s decision, filed on Wednesday, found that the Board of Supervisors must provide legal counsel to Sheriff Frank Rivero.
The board had refused to do so at its March 6 meeting. Rivero filed the writ on March 26.
In addition, Henderson ruled that Rivero “shall recover his reasonable attorneys fees and costs.”
Rivero’s attorney Paul Coble, senior associate with the Jones & Mayer law firm, said he’s preparing the writ and judgment, which Henderson directed him to do in the ruling. He anticipated filing those documents by the middle of next week.
Coble also is submitting a request for reimbursement for legal services going back to February, to the point when Rivero first knew he needed assistance.
He said he did not want to give a ballpark estimate on what the fees would total, as his staff’s calculations weren’t yet complete.
County Counsel Anita Grant said Thursday that the Board of Supervisors could appeal the ruling.
However, Board Chair Rob Brown said he doesn’t think the board would pursue an appeal, although they’ve not yet talked about it.
“I just think we need to move forward now with an attorney,” Brown said, adding that he will talk to Grant about placing the matter on the agenda as soon as possible.
Investigation triggers request
Rivero has been under investigation by the Lake County District Attorney’s Office for allegedly lying about a February 2008 incident in which he shot at an unarmed man – who was uninjured – while working as a sheriff’s deputy. Rivero was elected sheriff two and a half years later.
District Attorney Don Anderson is required under law to divulge to defense attorneys any exculpatory evidence benefiting their clients, including credibility issues with peace officers.
That requirement emerged from case law surrounding the 1963 U.S. Supreme Court decision Brady v. Maryland, which is meant to prevent prosecutors from hiding evidence that could potentially clear a defendant.
If Anderson determines Rivero is a “Brady officer,” it carries the potential for serious implications in any criminal case in which Rivero is a witness.
For many officers, receiving a “Brady letter” means they are no longer considered credible witnesses, and it can spell the end of a law enforcement career.
In response to Anderson’s inquiry, Rivero asked for legal counsel under Government Code Section 31000.6, which states, “Upon request of the assessor or the sheriff of the county, the board of supervisors shall contract with and employ legal counsel to assist the assessor or the sheriff in the performance of his or her duties in any case where the county counsel or the district attorney would have a conflict of interest in representing the assessor or the sheriff.”
That same code allows the board to oppose the request and to consider an “ethical wall” in order to let the county’s attorneys provide representation.
The board had asked Grant – who herself had declared a conflict of interest in the case – to look into erecting an ethical wall in her office in order to provide Rivero with legal counsel. Rivero, however, opposed having the County Counsel’s Office represent him, leading to the writ.
Coble praised Grant for how she has handled the situation. “Ms. Grant has behaved with a high degree of ethical integrity.”
Anderson plans to move forward
Government Code 31000.6 states that the board “shall contract with and employ legal counsel” to assist the sheriff.
Grant said she could not comment at this point about whether the hiring of the attorney who will represent Rivero in his dealings with Anderson going forward is up to him or the board.
Coble, however, maintained that it’s up to Rivero to select who will represent him.
“At this point in time my understanding and expectation is that it’s the desire of the sheriff that we continue to represent him,” Coble said.
Anderson has held off for months in making his decision, but on Thursday he said he has to move forward, as he has time constraints with respect to providing discovery evidence in a case involving three Hells Angels members who are being prosecuted for a June 2011 fight with rival gang members.
Rivero became involved with the investigation and took the stand at a preliminary hearing in the case in March. The men were ordered to stand trial and a trial is pending.
“I’ve given him way more time than what I should have,” Anderson said.
Anderson said he intends to meet with Rivero in the next two to three weeks before finalizing his decision on whether Rivero will be labeled a Brady officer. Under law, the decision regarding the Brady officer designation is ultimately up to the district attorney.
Coble said Anderson has been very cooperative and they’ve had cordial communications during the process.
“We’ll be working together with Mr. Anderson to help him accomplish whatever it is he feels he needs to accomplish,” Coble said.
If Rivero refuses to meet with Anderson – Rivero had told the board he would not appear before a panel that Anderson previously had planned to assemble, calling it a “star chamber” – Anderson said he will still make his decision based on the information he has compiled and anything Rivero’s attorney wants to provide.
“He can either attend it or he doesn’t have to, it’s whatever he wants to do,” said Anderson. “I’m more than willing to listen to what he has to say.”
Coble, however, said Rivero wants to cooperate with Anderson.
“The sheriff has always been willing and, in fact, eager to cooperate with Mr. Anderson, the DA. He simply wanted the assistance of legal counsel in doing so,” Coble said.
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082712 Rivero Writ of Mandate Decision