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  • Justin Hein

Assembly Bill 1185 Revived

In the wake of the global response to recent deaths of African Americans at the hands of law enforcement, the California legislature is considering a wave of new legislation, including empowering Counties to provide more direct oversight of Sheriffs.


Last week, the California legislature dusted off a mothballed proposed piece of legislation, Assembly Bill 1185, which would confer authority on County Boards of Supervisors to create independent committees or inspector generals with the ability to investigate County Sheriff's for their conduct. AB 1185 is one a dozen pieces of legislation being contemplated this week by the state to address the outcry of systemic racism, prejudice, and bias in our current criminal legal system.


Other legislation contemplated includes a repeal of proposition 209's ban on affirmative action, reparations, required ethnic studies course in college, restoration of voting rights for paroled felons, cap probation length, permit parolees and probationers the ability to earn credits to reduce time, and an overhaul of Sheriff and Police use of deadly force doctrines.


AB 1185 is interesting in that it actually deals with something systemic. Specifically, the independence of the Sheriff as an elected official. In California's present system, the large majority of cities and counties have an elected Sheriff. And it uses the political process to re-elect or remove the head of the office of the Sheriff. Beyond elections, there is very little other direct and no complete oversight of the Sheriff.


Furthermore, AB 1185 has already been publicly lauded and scrutinized before the present, global movement. It was introduced in February 2019 and the bill was backed by a handful of advocacy groups, including the American Civil Liberties Union of California, which said the “Misuse of (sheriffs departments) can lead to grave constitutional violations, harms to liberty and the inherent sanctity of human life, and significant public unrest." But also was opposed by the California State Sheriffs’ Association who deemed the bill “unnecessary.” But then in October 2019, a decision was made by the bill's author to put the matter over to 2020 as there was


Background

The California legislature has conferred subpoena power to the Board of Supervisors of general law counties (Gov. Code, § 25303) and those Boards of Supervisors are entitled to use it to oversee the Sheriff, provided that it does not affect, interfere, or obstruct with the "independent and constitutionally and statutorily designated investigative and prosecutorial functions of the sheriff and district attorney."


Overseeing is more than just monitoring their fiscal conduct. Rather the statute permits the board of supervisors to "insure that they faithfully perform their duties ..." (People v. Langdon (1976) 54 Cal. App. 3d 384, 390 fn. 4.) And that can go so far as to conduct their own, independent investigation into conduct that either the sheriff or district attorney is investigating. (See Dibb v. County of San Diego (1994) 8 Cal.4th 1200, 1209.)


So, the Board of Supervisors may supervise the sheriff to the extent that the sheriff acts as a county officer, and may investigate the officer’s performance of county duties. However, keep in mind that the Sheriff is a separately elected official, subject to the control of the voters. Furthermore, when enforcing state law, the sheriff is acting as a peace officer of the state and is under the direct supervision of the attorney general. And, the sheriff is also an officer of the courts.


So, while acting in those capacities, the Sheriff has a legal argument that it is not under the supervision of the Board as it is not acting as a county officer nor performing county duties. And, as such, the Sheriff can justify ignoring the Board as it can contend that it may not investigate it in connection with such duties.





Moreover, the state legislature has not yet conferred the ability of the Board of Supervisors in general law counties to transfer their statutorily-created subpoena power to a third party. Gov. Code, § 31000.1 conferred the ability of the Board of Supervisors in general law counties to create committees of citizens to “study problems of general or special interest to the board and to make reports and recommendations to the board,” but not to investigate and issue subpoenas. And there is no existing authority for the creation of an Office of Inspector General to independently investigate the Sheriff.


Rather, the existing dynamic considers those questions political. And puts the onus on voters holding the Sheriff--a publicly elected official--accountable for it and its office's actions. So, while "accountable to all," the Sheriff really does not answer to anyone.


But Don't Some Counties Have Oversight of Sheriffs?

Yes. But that is because they are a special type of county that permits them to re-write the general rules and balance of power among different entities within that county.


The California Constitution recognizes two types of counties: general law counties and charter counties.

  • General law counties adhere to state law and state legislature as to the number and duties of county elected officials.

  • Charter counties have a limited degree of “home rule” authority that may provide for the election, compensation, terms, removal, and salary of the governing board; for the election or appointment (except the sheriff, district attorney, and assessor who must be elected), compensation, terms, and removal of all county officers; for the powers and duties of all officers; and for consolidation and segregation of county offices. A charter does not give county officials extra authority over local regulations, revenue-raising abilities, budgetary decisions, or intergovernmental relations.

Any county may adopt, amend, or repeal a charter with majority vote approval. A new charter or the amendment or repeal of an existing charter may be proposed by the Board of Supervisors, a charter commission, or an initiative petition. The provisions of a charter are the law of the state and have the force and effect of legislative enactments.


There are currently 44 general law counties and 14 charter counties. The charter counties are as follows: Alameda, Butte, El Dorado, Fresno, Los Angeles, Orange, Placer, Sacramento, San Bernardino, San Diego, San Francisco, San Mateo, Santa Clara, Tehama


So, the counties that have given investigatory authority over their Sheriff are in one of these 14 counties. Furthermore, Dibb, determined that the authority of charter counties (as well as charter cities) included the authority to confer subpoena authority to committees of citizens or inspector generals. This was because charter counties have a constitutional right (Cal. Const., article XI, section 4, subdivision (h)) to set up their governments how they see fit. And creating independent overseers of the sheriff is exactly the type of home rule authority contemplated in the constitution. (Dibb, at 1218-1219.)


This is What Systemic Change Looks Like

Kicking down the barrier of the Sheriff and his or her office is what systemic change is about. It is reconsidering letting someone with so much authority to oversee, investigate, and confront life-and-death decisions without any immediate and direct further oversight other than an election.


And rather than force counties into making the leap to home rule and creating a charter county, AB 1185 gives general law counties that exact authority.

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© 2019 Hein, Esq.       418 B Street, 4th Floor, Santa Rosa, CA 95401        707-921-3913        justin@heinesq.com

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