Sonoma County Sheriff: Subpoenas and investigations violate his constitutional powers

A whistleblower investigation by the Sonoma County Law Enforcement Oversight Board is an infringement on the separation of powers enshrined in the state constitution, Sheriff Eddie Engram told The Press Democrat on Thursday.

In an interview a week after subpoenas in the case sparked litigation, Engram said he was accountable to voters, not the county government apparatus.

Last week, the Independent Office of Law Enforcement Review and Outreach (IOLERO) asked the Sonoma County Superior Court to uphold subpoenas seeking the personnel files of three sheriff’s deputies and one non-sworn employee.

Both Engram and the Deputy Sheriffs Association, a union that represents sheriffs, say they will not comply with the subpoenas without a court order. The DSA has said the subpoenas violate the rights of its members. Although the nature of the whistleblower complaint has not been made public, attorneys for the DSA and Engram also argue that the investigation could target the actions of the sheriff himself.

And that, Engram said, would challenge the historic independence of California’s constitutional sheriffs.

“I don’t want to set the precedent that IOLERO is under the control of an elected official,” Engram said. “I’m not under the control of the Board of Supervisors, why should I be under the control of a (county) department head?”

The dispute with IOLERO Director John Alden is a civil matter, both he and Engram said, and represents a departure from what has been a smooth and cooperative working relationship. But behind the collegiality and mutual respect lurks a legal battle that could affect the question of whether sheriffs themselves are not subject to civilian oversight at all.

“Under California law, the attorney general is the only person who has authority over the sheriff or any kind of oversight over the sheriff and the district attorney,” Engram said. “Plus, voters have a say in whether we stay in office.”

But Alden said that when two-thirds of Sonoma County voters approved Measure P and gave IOLERO its whistleblower powers, they wanted more.

“I think we fundamentally disagree on this issue,” Alden said Thursday. The authors of Measure P and the people who supported it believed that “someone, somewhere, has to be responsible for investigating allegations that the sheriff was involved in some kind of wrongdoing.”

This view is also reinforced by a statewide law passed the same year as Measure P (AB 1185). The law gives counties the authority to establish oversight boards and gives them the right to issue subpoenas.

“I know there are sheriffs across the state who would not like that, and perhaps this litigation will set a precedent for that argument,” Alden said.

Engram told The Press Democrat he believes state law does not apply to sheriffs themselves, but to their employees. He said he follows what the law says. “If the people, through the legislature or a statewide vote or whatever, change the authority of the sheriff, then that’s what the people want.”

Alden pointed out that his office has no authority to discipline or remove the sheriff from office. IOLERO conducts investigations into deaths in the custody of the sheriff and reviews law enforcement’s internal investigations into misconduct by sheriff’s deputies. IOLERO’s auditors make recommendations in those investigations, and the sheriff is required to implement them.

However, the authority is ensuring greater transparency in the sheriff’s office: IOLERO publishes its final results in annual reports to the board of directors.

Engram and his attorney pointed to a recent legal dispute within the county authorities to support their argument that the sheriff himself is exempt from IOLERO’s oversight.

In that litigation, Engram’s predecessor, Sheriff Mark Essick, argued that he was a county employee and therefore the county could not make public a human resources investigation into his conduct. After an 18-month legal battle that cost Sonoma County taxpayers $86,000 in legal fees, a three-judge panel of the California Court of Appeals affirmed a district court ruling against Essick. Essick decided not to appeal and made the investigation report public.

The judges unanimously ruled that Essick, as an elected official, was not subordinate to his superiors.

In their decision, however, the justices emphasized that voters, as elected officials, have a right to information about the sheriff’s conduct and therefore the investigation into his conduct should not be protected. The laws, properly read, “offer no protection from the embarrassment of an elected official who also happens to be a peace officer,” the 18-page ruling states.