Legal Challenge Stalls Law Enforcement Review Measure

To those wondering what’s happening with Measure P, an expansion of Sonoma County’s law enforcement auditor which voters approved with a 64% majority last November, it turns out the ordinance is ensnared in a legal tangle that could take as long as another year to unravel.

The measure, also known as the Evelyn Cheatham Ordinance, gives the County’s Independent Office of Law Enforcement Review and Outreach (IOLERO) significantly broader powers than it currently has, as well as more funding so it can hire additional staff.

The supervisors voted to put the ordinance on the November 2020 ballot following months of encouragement by law enforcement oversight proponents. The crafters of the ordinance had already gathered 2,000 signatures before the Covid-19 pandemic forced them to stop. That’s when they began talking with supervisors and making dozens of comments during the public-comment segments of virtual meetings.

In August, following several months of local protests over the police killing of George Floyd, the supervisors agreed to place Measure P on the November 2020 ballot—just one day before the final deadline to do so.

Shortly after the supervisors’ vote, two unions representing Sonoma County Sheriff’s Office employees—the Sonoma County Deputy Sheriffs’ Association and the Sonoma County Law Enforcement Association—filed a complaint with the California Public Employment Relations Board (PERB). The groups say the County failed to meet state requirements to “meet and confer” with the unions before the supervisors voted to place the measure on the ballot. 

In June of this year PERB issued a decision on the complaint, agreeing with the two unions that the requirement to negotiate before the County placed the measure on the ballot is spelled out in the state’s Meyers-Milias-Brown Act of 2003.

This decision only invalidates portions of Measure P that relate directly to deputies’ rights on the job, including conducting IOLERO’s right to conduct its own investigations into complaints against deputies, to subpoena personnel records of the deputies involved, to publish body camera videos of the incidents in question, to sit in on interviews with the subjects of complaints and to recommend discipline. It leaves intact non-deputy-related items such as the increased IOLERO funding and that agency’s ability to appoint a Citizen’s Advisory Committee, a group of volunteers meant to represent the community’s interests.

PERB General Counsel Felix De La Torre said the board has no argument with the content of the ordinance, only with the way it was handled by the supervisors. According to De La Torre, negotiating parties do not have to come to an agreement. They only have to act in good faith. But by placing the measure on the ballot at the last minute, when it was impossible to make any changes, the County was not acting in good faith.

“The county was required to notify the unions of changes in the deputies’ jobs, and negotiate the effects of the changes,” De La Torre said in a telephone interview. “They could bargain to an impasse, as long as they are bargaining in good faith.”

PERB is a four-member, quasi-judicial appointed board with the power to “resolve disputes and enforce the statutory duties and rights of local public agency employers and employees, including processing unfair labor charges.”

Following PERB’s decision, the County filed an appeal to the California Appellate Court, First District, saying “PERB exceeded its remedial authority by requiring Petitioner (the county) to meet and confer with the associations before any and all ballot measures affecting employee discipline and other conditions of employment, thereby forcing Petitioner to violate its citizens’ voting and free speech rights.”

Fifth District Supervisor Lynda Hopkins said County Counsel advised the supervisors of the risk factors involved in placing Measure P on the ballot. 

Despite the legal concerns, Hopkins said the supervisors went ahead, “because it was the right thing to do.”

The County has until Monday, Nov. 22, to submit its first brief to the court. In the meantime the two officers’ unions have petitioned for a restraining order prohibiting the County from implementing Measure P until the entire matter is resolved.

“The same time the County appealed, it asked to speak with the unions—but refused to change anything in the ordinance,” said Kathleen Mastagni Storm, an attorney for the Sonoma County Deputy Sheriff’s Association. “This is not bargaining in good faith.”

She accused the County of initiating the talks in order to give some heft to its appeal by showing it is trying to do the right thing.

“They are just trying to move along their appeal,” Mastagni Storm said. “They refused an informal request to pause the talks so we filed a restraining order.”

The restraining order request will now go before the state appellate court to determine whether the County’s refusal to make changes to Measure P constitutes good or bad faith. De La Torre said the paper battle is likely to carry on until late summer 2022 when the First Appellate Court will hear the County’s appeal. The court will then take between three to six months more to reach a decision.

County supervisors created IOLERO several years after sheriff’s deputy Erick Gelhaus shot and killed 13-year-old Andy Lopez while the boy was walking down the street in a then-unincorporated portion of Santa Rosa carrying a toy rifle. The resulting community uproar was loud and persistent. The supervisors appointed a task force to study the matter. Among the task force’s recommendations was the creation of an independent review law enforcement body, which became IOLERO.

Still there were problems, according to Jerry Threet, a former San Francisco deputy city attorney who the County hired to run IOLERO in 2016.

“The sheriff felt no obligation to cooperate or collaborate,” Threet said in a Zoom interview. “He was fighting me behind the scenes.”

Two and a half years into his term, Threet presented a list of recommendations to the supervisors that he believed would strengthen IOLERO’s powers.

When the supervisors failed to champion the recommendations, Threet and members of the community decided to write their own ordinance, which turned into Measure P.

Current IOLERO Director Karlene Navarro, who took the job in March 2019, said she welcomes expansion of the agency’s powers and hopes “that the legal issues will resolve in a way that will support law enforcement oversight.”

“I am mindful that this has to happen within the confines of the law, and not based on my personal opinions,” she added.

Hopkins said she “is committed to exploring all options to realize the will of the people.”

There is another factor which will shape the future of the Evelyn Cheatham Ordinance. Sheriff Mark Essick has decided not to run for reelection. His successor, to be selected by voters in June 2022, could change the office’s relationship with IOLERO.

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