The new OIR director's job is to be a watchdog over O.C.'s law enforcement agencies. But it's complicated

By Ben BrazilStaff Writer

May 20, 2020 4:45 PM PT

As the new executive director of the Office of Independent Review, Sergio Perez is tasked with holding accountable Orange County’s law enforcement agencies.

His work may be cut out for him.

In the last few years, local law enforcement has been embroiled in high-profile scandals involving confidential informants, mishandling of evidence and allegations that sheriff’s deputies eavesdropped and recorded phone calls between inmates and their attorneys.

But the OIR position has been mired in controversy since it was first approved in 2008, in response to the death of John Chamberlain, an inmate who was beaten to death by other inmates in an Orange County jail.

The OIR position has been criticized as ineffective by some and praised as necessary by others.

District Atty. Todd Spitzer, who served as a county supervisor, was a vocal advocate for reforming the OIR position, as well as a staunch critic of both prior OIR’s who held the position.

“It’s just up to this point, it’s been kind of a fancy acronym,” said Assistant Public Defender Scott Sanders, who discovered that the district attorney’s office and sheriff’s department used jailhouse informants to illegally obtain confessions. “It didn’t mean anything to criminal defendants. Criminal defense wouldn’t think ‘Oh, thank God we have the OIR.’ It didn’t seem like it had much teeth.”

But he thinks it’s possible for Perez to be successful if he’s willing to call out the issues and put it down on paper.

“If you can go in there and are working with courage and commitment to make this a more fair and just criminal justice system, you can play a role even if all of your objectives aren’t met,” Sanders said. “It’s an office with some potential but its very unclear what becomes of it and what value it has for my clients.”

Perez believes his background holding law enforcement agencies accountable throughout the state has prepared him for the new role.

“I am used to these complicated spaces where a lot of people bring a lot of expectations to the table and where there might be a lot of tension as you tread into sensitive areas,” Perez said. “Accountability and oversight often entails looking under rocks that haven’t been looked under before and kicking and shaking the tires of government agencies in all sorts of ways.”

Perez, who has been in his new role for a few weeks, is the third Orange County OIR. Prior to his appointment, the office had been sitting vacant since 2018.

Perez will receive $360,000 in total compensation for his role overseeing the Sheriff’s Department, District Attorney’s office, Public Defenders office and Probation Department and the social services agency.

When the county Board of Supervisors voted in March to hire Perez, they chose an attorney with a civil rights and constitutional law background.

After attaining a law degree from Yale, he also worked for the U.S. Department of Justice as a trial attorney, before becoming the director of enforcement for the Los Angeles City Ethics Commission, investigating individuals who violated the city’s ethics, and campaign finance and lobbying laws.

While serving as a deputy attorney general with the California Department of Justice, Perez said he was one of two attorneys tasked with assessing the Sacramento Police Department in the wake of the fatal police shooting of Stephon Clark.

Clark was shot in his grandmother’s backyard when officers believed they saw him holding a firearm, though only a cellphone was found at the scene. Clark was being pursued by police for suspected vandalism. The officers who killed Clark were not charged by prosecutors.

As part of his work, Perez issued a public report that the department must adopt sweeping changes, including improving use-of-force policies, officer training and investigations into officer shootings.

While working as a special assistant and constitutional policing advisor for the Los Angeles County Inspector General, Perez assessed the use of force in the county’s juvenile hall, with a specific focus on the use of pepper spray. Videos and other reports suggested that probation department staff had used pepper spray improperly on youth.

Perez and two colleagues conducted a 45-day investigation and published a report that led to the elimination of the use of pepper spray in county juvenile facilities.

“I plan to navigate these waters the same ways I have navigated previous waters that involved these kinds of dynamics,” Perez said. “Working alongside individuals that you have oversight duties over entails that tricky dance of creating functional relationships that are predicated on trust and transparency without creating the appearance that you have lost your independence.

“It’s important that my office has the word ‘independent’ written into it,” he added. “If you read the law that empowers and lays out the duties of my office, that word pops up constantly ... I am going to make sure to live up to that word by always approaching my work with an eye towards providing independent objective advice and assessments, and doing so in a way that constantly creates trust even when I am delivering the kinds of news people don’t want to hear.”

“We have had two individuals in the OIR position, neither of which were well-suited towards the position,” said county Supervisor Lisa Bartlett. “For a number of reasons … it wasn’t a good match so we really needed to step back and figure out what was the appropriate skill-set we needed for this position. I think we have the right person now for that role.”

When the Board of Supervisors first created the OIR position, the mission of the office was to solely oversee the Sheriff’s Department, particularly focusing on problems in the jail system.

But it quickly descended into ineffectiveness.

Attorney Stephen Connolly, who served as the first OIR, was criticized for his close relationship with the Sheriff’s Department.

In particular, he was roundly rebuked for not uncovering the jailhouse informant scandal.

“I thought that was a major conflict of interest,” Bartlett said of his relationship with the department. “In fact, his office was in the Sheriff’s Department.”

In 2015, the Board of Supervisors added the District Attorney’s, Public Defenders, probation and social service departments to the list. Connolly resigned in 2016 amid the snitch scandal.

Attorney Kevin Rogan replaced Connolly after the office sat vacant for two years. Rogan had served as an assistant inspector general for Los Angeles prior to his hiring. His tenure as the OIR lasted less than a year.

Following his departure, the office was vacant for two years while the board considered how best to move forward with the position.

When asked what his thoughts were on previous executive directors and their failures, Perez said he was not “here to assess the performance of folks who have previously held this office.”

Bartlett said Rogan’s ineffectiveness was due to a “performance issue.”

The confusing history of the position has made Public Defender Sharon Petrosino skeptical.

“This is not an OIR in the traditional sense,” Petrosino said. “I question what it’s independent from.”

Spitzer was behind adding the other departments to the OIR’s purview. He’s supported the existence of a strong OIR position in Orange County for many years.

“Law enforcement agencies are some of the most, if not the most, powerful agencies in government,” Spitzer said. “The Sheriff and DA have immense powers over our personal freedom and our liberties and constitutional rights. They have tremendous autonomy, discretion and power. It’s critical to have oversight of that.”

Orange County District Atty. Todd Spitzer

An important area of debate surrounding the OIR position is whether the office should maintain attorney-client privilege with the departments it oversees.

Some contend it’s necessary in order for the OIR to gain access to sensitive information, while others believe it prevents the OIR from performing its mission — exposing corruption and wrongdoing.

“[Former Sheriff Sandra Hutchens] at the time, she insisted that she would only cooperate with an OIR if she had attorney-client privilege,” Spitzer said of Connolly’s time as director. “That effectively shut out the board from knowing anything. Mr. Connolly was prohibited with sharing that attorney-client privilege with us. The irony was we were the client. The whole model went completely astray.”

Hogan didn’t have attorney-client privilege with the departments. But Perez will have attorney-client privilege with each department he oversees and the Board of Supervisors.

“I think it’s problematic because basically you can’t serve multiple masters when you are an attorney,” Spitzer said. “So, his client is the Board of Supervisors, and he has a responsibility to advise them on all matters involving public safety agencies. How is that going to work practically?

“Now it becomes an ethical quagmire for the OIR, because the OIR’s client is the board. If the OIR has attorney-client privilege and learns info they are prohibited from disclosing that to their client ... I think that is a significant ethical problem.”

Sheriff Don Barnes said he had “high regard” for Connolly and valued the attorney-client privilege between him and the department.

“To be able to have that relationship with Mr. Perez allows me to give him unfettered, transparent open access,” Barnes said.

Bartlett echoed much of the same.

“It’s important because there is privileged info that you don’t want getting out into the public viewing,” Bartlett said. “The departments want to maintain that attorney-client privilege because they know info will not be released out into the public so people who do not have a need to know will not be able to access that information. If you don’t have attorney-client privilege and the information could go anywhere, the departments are going to be less inclined to volunteer to work with an OIR.”

In response to questioning about whether attorney-client privilege could affect what information the OIR can report, Perez pointed towards the county code that defines the position and its function.

“The attorney-client relationship the way it’s articulated here is directly tied to access,” Perez said. “It’s meant to secure access to confidential records. That access is absolutely necessary for effective oversight to take place.”

Among several notes defining what the OIR can report, the code states that “the OIR shall, consistent with state law, be authorized to provide such periodic and special reports to the public using traditional reporting and social media concerning its activities and findings as it deems proper and appropriate.”

Perez also pointed out that he can only be removed from his position by the Board of Supervisors, not any of the departments he oversees.

“On the one hand, people will argue ‘Well, in order for him to have access to important information, he needs attorney-client privilege,’” Spitzer said. “My response to that is, ‘Well, what’s your goal?’ If your goal is to somehow have the OIR assist the agency in fixing a particular issue, maybe that’s a potentially persuasive argument. But if the goal is for the Board of Supervisors to do its oversight function, then it actually is a disservice to the Board because it cannot be told what the OIR knows. That’s why it failed before.”

Perez will be watched with cautious optimism.

“This person certainly does have the pedigree,” Sanders said of Perez. “He seems like someone who would be committed to making it work more effectively. It looks like a good decision on its face from the Board, but it’s hard to know what the OIR is. To have this many problems over this many years, and have a silent OIR to date, is what leaves you perplexed about what will happen moving forward.”

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The new OIR director’s job is to be a watchdog over O.C.’s law enforcement agencies. But it’s complicated

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