D.A. Attacks Powers of Sheriff Review Panel

The district attorney’s office warned the County Board of Supervisors in 1990 that it would be illegal to create a sheriff’s civilian review board with subpoena power, but the board ignored the advice, Dist. Atty. Edwin Miller said this week.

Miller’s office filed a friend-of-the-court brief Monday with the 4th District Court of Appeal, arguing that a civilian panel with the power to subpoena witnesses is unconstitutional. Randy Dibb, president of the 1,400-member Deputy Sheriff’s Assn., filed the original court action against the review board.

Voters approved the review panel in November, 1990, to investigate allegations of excessive force, illegal search and seizure, criminal conduct, false arrest and other problems.

The Board of Supervisors created the oversight board early the following year, giving it subpoena powers.

Supervisors have the power of subpoena, but have no right to grant that authority to the citizens review board, Miller argued.

“Neither the county nor the Board of Supervisors has the power, either expressed or necessarily implied, to confer subpoena powers on this advisory board,” Miller said in a statement that accompanied the brief. “The granting of such subpoena power is an impermissible obstruction and infringement” to both the Sheriff’s Department and district attorney’s office.

The district attorney’s action has infuriated members of the civilian review board, one of whom called Miller’s involvement “outrageous” and “an unacceptable use of taxpayers’ money.” But Miller said that, although he supports a review board, he warned the Board of Supervisors two years ago through Chief Deputy Dist. Atty. Brian Michaels that a panel vested with subpoena power “would not be lawful under the California Constitution and statutes.”

“We said that then, and we are saying so again in our brief filed with the Court of Appeal,” Miller said.

Giving the citizens review panel the authority to subpoena would make it more powerful than the county grand jury, which must first seek permission for subpoenas from the Superior Court.

Valerie Tehan, a deputy county counsel representing the Board of Supervisors’ interests in the case, argued before the 4th District Court of Appeal that the district attorney’s office not be permitted to file its brief because it hadn’t done so before and could confuse the case even more.

Tehan said the Board of Supervisors has the authority to confer subpoena power on any advisory board it establishes through a charter amendment. A Superior Court judge agreed with the county in February, refusing to block creation of the panel. Attorneys for Dibb appealed in state court.

“The state constitution tells us what we can and cannot do,” Tehan said. “We do have the power to have an advisory board issue subpoenas. It comes expressly from the constitution.”

Attorneys for the civilian review board argued that, even if the authority is not granted, it is “necessarily implied.”

But Miller said the Board of Supervisors has allowed the civilian review board to investigate allegations of wrongdoing simultaneously with the Sheriff’s Department and district attorney’s office.

“Let’s say there is an officer-involved shooting in which someone is killed,” said James Atkins, the deputy district attorney who wrote the brief.

“Certainly the sheriff would have the authority to investigate the shooting, and the district attorney would determine whether there was any criminal conduct on the part of the deputy sheriff,” he said.

“As I understand the rules, the civilian review board would be entitled to investigate and subpoena evidence simultaneously.”

Marilyn Lassman, the chairwoman of the civilian review board, said in mid-November, when she found out that Miller intended to file the brief, that Miller’s actions are at odds with what voters approved in 1990.

“For the district attorney to aid in this challenge is in direct conflict with the wishes of the people and an unacceptable use of taxpayers’ money,” she said.

In a statement released this week, Miller said Lassman’s “inflammatory” statements are of little consequence.

“This has little to do with whether one likes or dislikes the concept of civilian review and everything to do with the public’s right to insist its officials do not surrender to the passions of the moment and take actions without legal authority,” Miller said.