The Volokh Conspiracy

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Sheriff Isn't County Employee, so County May Release Report Investigating Him


From Essick v. County of Sonoma, decided last Wednesday by the California Court of Appeal (Justice Jon Streeter, joined by Presiding Justice Stuart Pollak and Superior Court Judge Tara Desautels):

Following the submission to the County of Sonoma … of a harassment complaint against Mark Essick, the elected sheriff of the County, an independent investigator, Ms. Amy Oppenheimer, conducted an inquiry and prepared a written report. A local newspaper requested that the County release the complaint, the report, and various related documents … pursuant to the California Public Records Act …. Sheriff Essick … [argues, among other things, that] (1) the Oppenheimer Report should be classified as confidential under an exemption to the CPRA, either as a "peace officer[ ]" "personnel record[ ]" or because it constitutes a "report[ ] or findings" relating to a complaint by a member of the public against a peace officer …. We disagree ….

The court released a redacted version of the opinion, though it said an unredacted version will be sealed within a month; the redacted facts are so heavily redacted that I'm omitting them here, and focusing on the legal analysis:

[California law makes confidential] the "personnel records of peace officers" and "information obtained from these records." "Personnel records" means anything in a file maintained under the officer's name "by his or her employing agency" that relates to a variety of subjects in which an officer may have a privacy interest, including, as pertinent here, the officer's "advancement, appraisal, or discipline" or "[c]omplaints, or investigations of complaints" concerning the performance of his or her duty….

To support [his argument] …, Sheriff Essick must demonstrate that the County is his employer. We conclude he has not met that burden.

That the County has chosen to pay its elected officials is immaterial to its relationship to Sheriff Essick. The county sheriff is a public official elected by Sonoma County voters, and as such, is ultimately responsible to them—not to the Board of Supervisors or anyone else in county government. Not only does the Board of Supervisors lack power to hire the county sheriff, it lacks power to fire the person in that office as well…..

Nor does the Board of Supervisors have disciplinary power over the county sheriff…. Rather, a county board has "oversight responsibility" as to an elected sheriff but lacks power to direct how he or she performs official duties….

We are not persuaded that the Oppenheimer Report is "discipline" from which the Sheriff might appeal. The Oppenheimer Report has no consequence for Sheriff Essick's duties, tenure, compensation, or benefits. If criticism of the conduct of elected officials were "discipline" subject to a full array of due process rights for determining truth and accuracy, our democracy would function rather differently than it does. Any statements from members of the Board of Supervisors approving or disapproving Sheriff Essick's conduct, individually or collectively, are expressions of the Supervisors' own free speech rights and do not amount to discipline. The truth and accuracy of such statements must be open to testing in the public square. Indeed, the fact we are dealing with what may fairly be characterized as political speech among elected officials toward one another underscores the importance of reading the CPRA in favor of disclosure….

A central role of the Board of Supervisors, like any other legislative body, is to investigate the conduct of executive officials and thereby shine a light on matters that the voters of the County may wish to know. Here, the voters of the County have ultimate authority over the county sheriff, and they are entitled to be informed as to that person's strengths, as well as weaknesses, successes and failures—including the person's ability to model traits of civility and respect for others that may be expected in an official who should embody those values for the public….