LAKEPORT, Calif. – After a short, contentious Tuesday morning discussion, the Board of Supervisors approved the hiring of a Southern California attorney to represent Lake County’s sheriff, who is facing a potential action by the district attorney based on allegations that he lied during a 2008 investigation.
The board, in a 3-1 vote – with Board Chair Rob Brown voting no – approved the appointment of Paul Coble of Fullerton, a senior associate with the Jones & Mayer law firm, to represent Sheriff Frank Rivero in dealings with District Attorney Don Anderson. Supervisor Jim Comstock was absent from the meeting.
Anderson is considering giving Rivero a “Brady letter,” due to allegations that he lied to sheriff’s officials conducting an investigation into a nonfatal shooting in February 2008 in which Rivero – then a deputy – shot at a man holding a can of pepper spray. The man was not hit or injured.
Case law that has developed from the 1963 U.S. Supreme Court decision, Brady v. Maryland, requires prosecutors to divulge all potentially exculpatory evidence to defendants in criminal cases.
With regard to law enforcement officers with credibility issues, those issues must be released to defendants in cases where the officers are involved.
Anderson had begun the inquiry last year, and earlier this year Rivero had gone to the board to ask for outside legal counsel after County Counsel Anita Grant declared a conflict of interest in the case.
Rivero based his request on 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.”
The board had voted in March to ask Grant’s office to explore an “ethical wall” in order to avoid the conflict. Anderson waived the conflict, Rivero did not, and later in March he filed a writ of mandate to force the board to give him the attorney under the government code. Last month a visiting Mendocino County judge granted Rivero’s request.
Grant told the board on Tuesday that she had asked Jones & Mayer last week for an estimate of costs going forward in dealings with the district attorney. On Tuesday morning she received an email estimating $5,610, with attorney’s fees at about $250 an hour.
State government code allows for “reasonable” fees to be paid to attorneys in such cases. “That’s at the high end but it is within the range,” Grant said.
If more formalized representation is needed, she said Coble estimated that the base cost of $5,610 could be increased by a factor of three or more.
She suggested the board establish an initial contract with a specific cost level. If costs need to be increased, the amount can be renegotiated, as the board has done in other circumstances. Grant suggested a $6,500 cap.
Brown said the language of the code doesn’t specifically say anything about the sheriff being able to pick whatever attorney he wants. Grant said the California Attorney General’s Office has given a general opinion of the law that concludes the choice is up to the sheriff.
Brown said he felt a local attorney should be chosen. “I already think it’s exorbitant,” he said, referring to the initial amount just to meet with the District Attorney’s Office.
Board members, sheriff clash
Supervisor Anthony Farrington said he had trepidation that if the board pursued the matter of choice of attorney, the sheriff would “hang his hat” on the attorney general’s opinion. He said the spending of tax dollars has been his concern from the beginning.
He asked Rivero how much the county had to reimburse him for legal costs to date.
“I don’t have that figure with me,” said Rivero. “They’re working on it right now.”
Grant, however, said the amount to date totaled about $14,000.
Coble had told Lake County News in an interview late in August that his bill for legal expenses in representing Rivero stretched back to February.
Farrington asked Grant if the board would be able to see itemizations of the costs. Grant said the board was entitled to question some of the expenses. “You’re not giving the keys to the kingdom.”
Brown called the situation “a joke,” adding, “I think the whole thing’s ridiculous.”
He asked the source of funding; Grant said it could come from the Local Assistance for Rural and Small County Law Enforcement fund.
Farrington asked how that would impact plans to purchase a Clearlake Oaks substation. County staff said there was about $1.8 million in the fund. Farrington said that was if the county didn’t end up in “an appellate-type venture,” hinting that Rivero may take the matter much further based on Anderson’s anticipated decision.
Brown said it also depended on the client. He pointed out that when there is a litigious client who is always on the phone with the attorney, “someone has to pay for that bill,” with it being no different than dealing with public defenders.
“I understand that you don’t like this,” said Supervisor Denise Rushing. “It’s a tough thing to do fiscally.”
She said she was prepared to give approval as long as the costs were within an acceptable range and the board had control mechanisms. Rushing called the funding source “unfortunate.”
Brown wanted to know the options for getting a local attorney. Rushing said it would cost more to change attorneys at this point, to which Brown replied, “It should have been done originally.”
Supervisor Jeff Smith was curious about the listed travel time, as well as airfare, a rental car and overnight lodging. He asked where Fullerton was, and Brown pointed out that it’s in Orange County.
Brown asked if the attorney general’s opinion on such cases had been tested. Grant said not to her knowledge.
At that point, Rivero – who had been sitting quietly at a table before the board dais – broke in, saying that the amount of attorney’s fees to go against the county to get the legal representation already had exceeded the estimates to resolve the entire matter.
“That’s a decision that falls squarely on your shoulders,” he told the board.
The outcome, replied Brown, is likely to be the same.
Rivero asked if he had some reason to believe that. “Yeah, I do,” Brown replied.
For his part, Rivero said he didn’t know it to be true, and said the board should have followed the statute and given him an attorney from the beginning.
“I would believe that one should learn from history,” Rivero said.
Brown said cryptically that the matter may turn out to come down to one individual. “Plus, it will give you something to talk about on the radio,” Brown said, a reference to Rivero’s shows in which he often criticizes the board and his political opponents.
“When we used to communicate,” Farrington told Rivero, he said the sheriff had asked him to communicate with the County Counsel’s Office after she declared the conflict. Farrington said he tried to facilitate another possibility – he had championed the ethical wall approach – but said Rivero had elected not to accept it.
Rivero replied that the county counsel had said “unequivocally” that there was a conflict.
That decision, Farrington reminded him, had triggered their conversations. Farrington recalled Rivero being upset that Grant had declared the conflict. He said he tried to facilitate a resolution, reaching out to Anderson, who waived any conflict.
Farrington said Rivero baited and switched. “Right now, you’re not being honest,” Farrington said, a statement to which Rivero objected. Farrington said their email exchange over Rivero’s legal counsel told a different story.
Rivero said he was acting in the best interests of the sheriff’s office. Farrington pressed him on why he had still wanted representation from Grant’s office initially after she had conflicted out.
Farrington said he wanted to move forward. “You have bait and switched,” no matter what Rivero was saying now, he said.
With that, Farrington said he also wanted to have Grant write a letter and bring it back on the next available agenda asking Anderson to move forward immediately on the Brady letter decision in the interest of saving taxpayer money. The board gave consensus.
Farrington moved to approve Jones & Mayer as the firm to represent Rivero, with a fee structure not to exceed $6,500, and to bring back a contract for final approval. Rushing seconded, with the board voting 3-1, with Brown voting no.
Farrington also moved to identify the Local Assistance for Rural and Small County Law Enforcement fund as the source of funding.
Interim County Administrative Officer Matt Perry said staff would have to return to the board at a future meeting – the date of which has not yet been determined – with a resolution to cancel the reserves in the fund in order to approve the expenditure. The board approved Farrington’s motion 4-0.
Grant’s letter to Anderson and the final contract with Jones & Mayer are scheduled to be on next week’s agenda.
Anderson told Lake County News on Tuesday that he’s ready to proceed.
“Basically, I’ve been waiting for the last two or three months for them to decide who the attorney’s going to be so I can schedule a meeting,” he said.
He plans to meet with Rivero and give him a chance to explain his side of the story.
After he meets with Rivero, Anderson will evaluate what he has to say, the evidence – including taped interviews – and reports, and then make a decision.
According to case law, the decision of who gets a Brady letter ultimately is up to the district attorney.
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. .