New County Board and Sheriff Could Be Headed for a Standoff
Activists hope the Board of Supervisors, now with a majority of Democrats, could use its budget powers to change the Sheriff’s Department. But the sheriff is independently elected and can thwart pressures to adjust how he operates.
A new Democratic majority will take hold of the San Diego County Board of Supervisors in January and one of the major hopes some supporters had was that the board would challenge practices at the Sheriff’s Department.
Several advocates told Voice of San Diego they would like to see the board reduce the department’s budget, shift funding to social workers who can respond to emergency calls involving people with mental health issues and further limit the sheriff’s interactions with Immigration and Customs Enforcement.
For the first time in recent history, the Board of Supervisors may be antagonistic to the Sheriff’s Department. For decades, they have cooperated with extremely rare public disputes. The new dynamic may bring out just what power each government agency has and what control the supervisors can wield.
There is a history of similar power struggles across the state.
Because the California Constitution provides for an elected sheriff, the Board of Supervisors has limited power over the department. It’s different than city police departments that answer to the mayor and city council.
We got a preview of the potential standoffs when San Diego Sheriff Bill Gore recently made a proposal to outsource health care in county jails to the supervisors in August.
As Gore brought the outsourcing proposal to the board, Fletcher announced a different proposal. He wanted to have the county’s Health and Human Services Agency administer medical and behavioral health services in jails, and to prevent Gore from privatizing services. Fletcher pointed to the high number of deaths in county jails.
San Diego County jails have seen an average higher than one inmate dying per month, every month since 2009, when Gore took over as sheriff, a San Diego Union-Tribune investigation found last year. That is a higher mortality rate than other large California county jail systems. Over the past decade, the county paid at least $7.9 million to families of people who died or were badly injured in jail, the U-T’s investigation found.
Fletcher said the county must pay those settlements for in-custody deaths or medical negligence.
“As a board, we are the ones who are on the hook,” Fletcher said as he cast the lone “no” vote against Gore’s proposal at a county meeting in August. “We should have input.”
Then, Gore sent Fletcher a letter, laying out just how little say the county had over his department’s operations, including those in jails.
“Under California law, the Board of Supervisors has no direct authority over the jail,” Gore wrote. “Case law is very clear the Board not only has no duty, but no right to control the operation of the jails. As such, the Board cannot oversee operations or set policy.”
The board’s responsibility, Gore wrote, is primarily financial.
“Specifically, the Board of Supervisors is required to provide the Sheriff with food, clothing, and bedding for inmates and to pay the expenses incurred in keeping inmates,” he wrote. “The law specifically states that the expenses incurred in the support of persons charged with or convicted of a crime and committed to the county jail and the maintenance therein are county charges.”
The board, apart from Fletcher, ended up voting to have the Health and Human Services Agency develop a plan for in-house medical care of jail inmates, as well as possibly outsourcing those duties. Gore will review the plans. Officials have also put out requests for proposals from private contractors to handle those duties.
The county does have control over the department’s budget, but because of a state mandate that county governments cannot interfere with an elected sheriff or district attorney’s investigative or prosecutorial capacity, even their ability to simply cut those departments’ budgets isn’t as straightforward as it may seem, said Mario Mainero, a law professor at Chapman University and a former chief of staff for former Orange County Supervisor John Moorlach.
If the Board of Supervisors wanted to reduce the budget for disagreements over the way the department operates or if they want to transfer some of the money to other purposes, the sheriff could make an argument that those cuts are an attempt to control the way law enforcement conducts its investigations, Mainero said.
“That’s going to be really easy for the sheriff’s department to make that argument if your budget is healthy,” he said.
That said, if the county is facing real budget constraints, the sheriff’s department must also make cuts.
In October 2019, for example, the Los Angeles County Board of Supervisors voted to freeze the sheriff’s spending, in an attempt to pressure Sheriff Alex Villanueva into dealing with the department’s budget issues. Some of that money has since been released, in part due to the coronavirus.
The county also can’t transfer certain sheriff or district attorney employees associated with investigations or prosecutions to other positions in other departments. In 1974, for example, after Orange County District Attorney Cecil Hicks launched several political corruption investigations, the county Board of Supervisors tried to dismantle his intelligence unit, in part by transferring 22 of his investigators to the Sheriff-Coroner’s office. They were unable to do this since it interfered with the DA’s investigatory duties.
The county could create separate entities or teams of mental health professionals to respond to incidents that involve people who are facing mental health crises, Mainero said. The San Diego Board of Supervisors did this in June, creating a “Mobile Crisis Response Team” of trained mental health providers to respond to nonviolent incidences involving people with mental health issues. The entity is separate from law enforcement, even having its own distinct helpline for people to call.
Mainero said counties do have the power to order independent investigations or create independent oversight bodies for the sheriff’s department. San Diego County has had a Citizens’ Law Enforcement Review Board for decades, which was established by a voter initiative in 1990 following a series of allegations of abuse in county jails.
San Diego’s CLERB has had its own issues, though. The oversight group has been drowning in the number of death cases involving county law enforcement officers that it needs to investigate, and in 2017, it recommended dismissing 22 cases without investigation. The board has only five staff members.
Strengthening the CLERB by increasing its budget and staff is something the county can do to help hold law enforcement accountable, Mainero said.
In June, the board approved a proposal brought forth by Fletcher to expand CLERB’s investigative authority, and CLERB saw a slight increase in its budget and three additional staff members when the county adopted its budget.
Removing a sheriff is also something that is exceptionally difficult for county officials to do.
In 2002, voters in Los Angeles County agreed to restrict all county term limits to three four-year terms. But then-Sheriff Lee Baca successfully argued that the term limit didn’t apply to his office, which was enshrined in the state Constitution. Baca is now in federal prison after a jury found he oversaw a plan to interfere with the federal probe into inmate abuses in the county jail system and later lied to prosecutors about his role.
The L.A. County Supervisors are currently clashing with Villanueva and are raising the question of whether they can remove him.
“The problem here is you are dealing with an office that is reflected within the Constitution of the state of California,” Mainero said.
To significantly change those powers would require statewide voters to amend the Constitution.
Correction: An earlier version of this post said CLERB’s staff did not increase in the most recent budget; it got three additional staff members.