LAKEPORT, Calif. – A visiting judge is expected to render a decision sometime in the coming month on a Lake County Sheriff's sergeant's suit alleging that the county's sheriff violated his peace officer rights.
Sgt. Corey Paulich filed the case in July, alleging that Sheriff Frank Rivero repeatedly interrogated him following a March high speed chase involving two deputies under Paulich's supervision, as Lake County News has reported.
Paulich, a 16-year veteran of the Lake County Sheriff's Office, is seeking to have a disciplinary investigation and a proposed disciplinary letter set aside, and asking for $150,000 in civil penalties – $25,000 for each of the six alleged violations of his rights under the Public Safety Officers Procedural Bill of Rights Act, or POBR.
With all of the county's judges recusing themselves from the case, retired Alameda County Superior Court Judge William McKinstry was assigned to hear the case Friday morning in Lake County Superior Court.
Paulich's attorney, Christopher Miller, asked the court to allow him to update his filings to allege contempt by the county, which went forward with proposed discipline of Paulich.
Deputy County Counsel Lloyd Guintivano, who appeared along with Rivero, objected to the request, arguing that such filings should have been made earlier.
Guintivano said he was ready to proceed on the merits of the case, adding that he believed the request “is just a delaying tactic by petitioner's counsel.”
McKinstry denied Miller's request for a continuance and the hearing proceeded.
During his arguments, Miller told the court, “The crux of this case really comes down to the interrogations conducted by the sheriff of Sgt. Paulich prior to the sheriff initiating the disciplinary action.”
According to case documents, the high speed pursuit of Clearlake resident Michael Bronsert had been initiated in the early morning hours of March 13 by the Clearlake Police Department, with the chase reaching speeds of up to 100 miles per hour. The deputies joined it, and one of them rammed Bronsert's vehicle, bringing the chase to an end.
Later on March 13 after Paulich had gone off duty for the day he was directed by Sgt. Gary Basor to contact Rivero by phone, with a 30-minute interrogation about the incident following. Later in the evening Rivero called Paulich again, reportedly admonishing him about the incident and questioning his understanding of departmental pursuit policy, and telling Paulich he had failed to perform his duties, according to the suit.
On the night of March 13, Rivero sent Paulich an email that warned he would be “held accountable” for the deputies' actions, and again early the following morning Rivero emailed Paulich to accuse him of failing to handle the pursuit in a proper manner, court documents state.
According to Paulich's suit, he was served the following day with an internal affairs investigation alleging that he had violated department rules and regulations in relation to the pursuit.
Guintivano and the county argued in replies to the suit that Rivero's questioning of Paulich was not related to the internal affairs investigation or the subsequent proposal that a letter of reprimand be placed in Paulich's personnel file.
However, Miller argued, “These are related actions.”
He added, “There is absolutely no basis for an assertion by the county that the sheriff's interrogations of Sgt. Paulich were some sort of routine contact.”
According to POBR, a peace officer cannot be interrogated by an employer regarding actions that could lead to discipline, said Miller, who argued that the county's assertions that Rivero's questions were part of training contacts were unfounded.
He said Rivero continued to question Paulich's actions, motivations and understanding, eliciting responses. “That's an interrogation,” and it would be subject to POBR even if no disciplinary action resulted, Miller said.
“The only defense that the respondents raised is that this was somehow routine contact or training and frankly they're absurd,” Miller said, pointing out that according to Rivero's own declaration it was not a routine matter.
“An interrogation doesn't require the bright lights and green lampshade,” said Miller. It only requires that an employee be questioned about a matter that leads to discipline which, in this case, it did, he argued, adding that's the best evidence that it was, in fact, an interrogation.
Miller asked for the investigation and proposed disciplinary action to be set aside, calling Rivero's interrogation of Paulich “outrageous behavior.” He alleged that there was a clear pattern of behavior on Rivero's part to violate Paulich's rights.
“He didn't do it once, he didn't do it twice, he did it three times within a 24-hour period,” said Miller.
He said Paulich was seeking the full administrative penalties, along with court and attorney costs for the “malicious” violation of his rights. He said the willful or malicious nature of the alleged violations are shown “where there is a blatant disregard for the rights of the officer under the statute.”
Miller, who said he practices law in the area of peace officer rights up and down the state, said virtually every law enforcement authority knows the fundamental rules of questioning employees. “There's no excuse for what the sheriff did,” he said.
He said the case reads “as though somebody lost control of their temper, was very angry,” and proceeded with questioning Paulich.
Guintivano argued that Miller defined interrogation too broadly. He also objected to references to disciplinary proceedings on the grounds that it was a personnel matter. “It should be deemed confidential,” he said, adding that the information also wasn't relevant to the allegations.
While Miller argued that Rivero's communications with Paulich weren't about training or routine matters, Guintivano said that the case exhibits showed that Rivero had cut and pasted department policies and procedures into his e-mails to Paulich.
Guintivano said Rivero first spoke with Paulich by phone to ask what happened, and followed up with another contact because Paulich did not provide an adequate account of what happened.
“Sheriff Rivero is entitled to know what actually happened out there,” Guintivano said.
Rivero's e-mail to Paulich was a memorialization of previous discussions with Paulich. Dismissal, demotion and discipline were not mentioned, Guintivano said. “There was no intent on Sheriff Rivero's part to investigate the petitioner.”
After Rivero reflected on the situation he realized Paulich needed to be investigated, Guintivano said.
Ruling for Paulich would creates a “slippery slope” that would make it difficult to deal with employees, and would require POBR compliance for every question the sheriff asks his employees, Guintivano argued.
In his final response, Miller said that what cases involving POBR reveal is that when a line of questioning is not routine counseling or training, regardless of the intention, the matter falls under the statute's rules against interrogation.
Had Rivero simply asked Paulich about the initial incident or asked for clarification as to when it had occurred, and assured him that it wasn't disciplinary in nature, there would not have been a problem, said Miller.
“That's clearly not what happened here,” he said.
While Rivero may have intended his interactions with Paulich to be routine training or inquiry, that's not what resulted, said Miller, who alleged that Rivero had obvious knowledge that he was violating Paulich's rights.
Judge McKinstry said he will give a decision as soon as he can, but noted that his visits to the county are infrequent and his communication with the court clerk is through “snail mail,” which could delay the decision's delivery.
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County of Lake and Lake County Sheriff's Answer to Paulich
County of Lake's Opposition to Sgt. Paulich Petition
Paulich Case - Reply Memo of P&a in Support of Petition
Sgt. Corey Paulich Supplemental Declaration
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