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  • Wednesday, December 05, 2007

     

    O.C. County Counsel rules on Carona leave

    Sheriff Carona still collecting pay

    The following is the information on the December 11th Orange County Supervisors meeting agenda concerning O.C. Supervisor Chair Norby's inquiry that County Counsel report back to the Board on several issues regarding the Sheriff-Coroner’s current job status. The following also appears on the OC Sheriff Blog site:


    For the OC Supervisor Agenda CLICK ON:
    DECEMBER 11 AGENDA



    BACKGROUND INFORMATION:
    On October 30, 2007, a federal grand jury indictment was unsealed against Sheriff-Coroner Michael S. Carona, charging him with several felonies. On November 6, 2007, Sheriff Carona sent a “Message to the [Sheriff’s] Department,” wherein he stated that he would be taking a “sixty day leave of absence” effective November 9, 2007.

    We are advised that the Sheriff has delegated his duties to Undersheriff Galisky. We are also advised that Undersheriff Galisky consults with him on a regular basis concerning department business, and the Sheriff is available to return to the office immediately should the need arise. We are informed that he continues to collect his salary.

    (1) Does the Sheriff have the authority to select to whom he delegates his duties while he is on a voluntary leave of absence?
    Yes, unless his office is vacant, the Sheriff has the authority to assign personnel to carry out his duties as he sees fit.

    The Sheriff is designated in the general statutes as a county officer. (Gov’t Code § 24000, subd. (b).) The Sheriff “may appoint as many deputies as are necessary for the prompt and faithful discharge of the duties of his office.” (Gov’t Code § 24101.)

    Because his office is not vacant under the law, the Sheriff remains the department head. As discussed below, his duties may be properly exercised by the Undersheriff and other OCSD personnel.

    The Board has the responsibility and authority to supervise the official conduct of all County officers. (Gov’t Code § 25303.) However, the Board has no power to direct the manner in which the Sheriff’s statutorily prescribed duties are performed or to appoint deputies for the Sheriff. (See Brandt v. Board of Supervisors, 84 Cal. App. 3d 598, 602 (1978); Hicks v. Board of Supervisors, 69 Cal. App. 3d 228, 242 (1977); County of Modoc v. Spencer, 103 Cal. 498, 500-502 (1894).) The Board also has no power to control the manner in which the Sheriff assigns personnel. (77 Op. Cal. Att’y Gen. 82 (1994).) The Attorney General supervises the Sheriff’s performance of his functions. (Cal. Const. art. V, § 13 (“. . . The Attorney General shall have direct supervision over every . . . sheriff . . . in all matters pertaining to the duties of their respective offices . . .”); Gov’t Code § 12560 (“The Attorney General has direct supervision over the sheriffs of the several counties of the State . . . .”).)

    The Sheriff is acting within his authority as Sheriff-Coroner to assign his duties to the Undersheriff in his absence. (2) May the Undersheriff perform all the Sheriff’s duties in his absence?
    The Undersheriff possesses all the powers and may perform the Sheriff’s duties unless restricted by statute, charter, ordinance, regulation or by the Sheriff himself.

    At common law, a “deputy” was authorized to perform only limited, ministerial duties on behalf of his principal. (52 Op. Cal. Att’y Gen. 75, 76-78 (1969).) The Legislature changed this rule by statute, generally allowing a deputy to perform any of the duties of his principal unless otherwise prohibited. (Id.; Gov’t Code §§ 7, 1194, 24100.) Currently, “a deputy may perform any of the duties of his principal unless restricted by statute, charter, ordinance, regulation, or by the principal.” (78 Op. Cal. Att’y Gen. 362 (1995); 70 Op. Cal. Att’y Gen. 250, 253 n. 6 (1987); 63 Op. Cal. Att’y Gen. 710, 715, 718-719 (1980).) The Government Code contains the statutes setting forth this principle of law.

    Section 7 provides:

    “Whenever a power is granted to, or a duty is imposed upon, a public officer, the power may be exercised or the duty may be performed by a deputy of the officer or by a person authorized, pursuant to law, by the officer, unless this code expressly provides otherwise.”

    Section 1194 states:

    “When not otherwise provided for, each deputy possesses the powers and may perform the duties attached by law to the office of his principal.”

    Section 24100 states:

    “Whenever the official name of any principal officer is used in any law conferring power or imposing duties or liabilities, it includes deputies.”

    The same rules apply to the office of the Coroner. Section 27530 provides:

    “If the coroner is absent or unable to attend, the duties of his office may be discharged by any of his deputies with like authority and subject to the same obligations and penalties as the coroner.”

    The court in Sarter v. Siskiyou County, 42 Cal. App. 530 (1919) explained as follows:

    “The deputy of a public officer, when exercising the functions or performing the duties cast by law upon such officer, is acting for his principal or the officer himself. The deputy’s official acts are always those of the officer. He merely takes the place of the principal in the discharge of duties appertaining to the office. When, therefore, the law provides that it shall be the duty of a certain public officer to do or perform certain public official acts, the deputy of such officer, if there be one, is necessarily included within the terms of the provision. If the law provides that an official act shall be performed in a particular way, it is no less the duty of a deputy to do the act in the manner so prescribed than it is that of the officer himself. In brief, a deputy under a public officer and the officer or person holding the office are, in contemplation of law and in an official sense, one and the same person.”

    This principle of law applies equally to the Sheriff and his deputies. “As to the extent of the power exercisable by a deputy sheriff, both the general statutes and decisional law establish that he possesses all of the powers and may perform all of the duties attached by law to the office of sheriff.” (People v. Woods, 7 Cal. App. 3d 382, 387 (1970) (emphasis added).)

    As a deputy, the Undersheriff is authorized to perform the duties of the Sheriff. Over a hundred years ago, the County of Del Norte required its Sheriff to also be its Tax Collector. The state general law provided that “the sheriff must perform such other duties as are required by law.” In People v. Otto, 77 Cal. 45 (1888), at issue was whether the undersheriff had the authority to collect the taxes in Del Norte. The court held that the undersheriff had the authority to perform the Sheriff’s tax collecting duties since each deputy possesses the powers and may perform the duties attached to the office of his principal. The court stated:

    “The under-sheriff is a general deputy. He performs all the duties of a deputy, has like powers and authority and his principal is bound by his acts in like manner as by those of other parties. In addition to this, the under-sheriff has certain powers in cases of the absence or sickness of his principal not possessed by an ordinary deputy. He may be termed a vice-sheriff, who acts in certain contingencies in place of the sheriff, and who in addition performs the duties of a deputy.”

    (Id. at 48 (emphasis in original); see also, Shirran v. Dallas, 21 Cal. App. 405, 415 (1913) (“[I]t clearly appears that an ‘under-sheriff’ is merely another name for a ‘deputy sheriff’ and that the two phrases describe precisely the same officer. It follows that the execution of the return and the certificate of sale referred to in this case by the sheriff by and through a person designating himself as an ‘under sheriff’ was sufficient to show that the official acts essential to their validity were those of the sheriff through a deputy duly and regularly authorized to act in said transactions for him and in his name.”)

    (3) Is the Undersheriff the “Acting Sheriff”?
    No, the Undersheriff is not the “Acting Sheriff” because Sheriff Carona still holds the office of Sheriff-Coroner.

    There is no formal title “Acting Sheriff.” Sheriff Carona stills holds the office and the title of the office. His sixty-day absence is voluntary and is not a legal impediment to his ability to exercise his duties as Sheriff. Sheriff Carona retains the complete discretion to return to his duties at any time during this voluntary “leave of absence.”

    (4) What does it mean for an elected official to take a leave of absence?
    There are various leave provisions in the Personnel and Salary Resolution (“PSR”) and applicable Memorandum of Understanding for each union. Leave may be paid or unpaid, depending on the type and duration.

    There is no corresponding “leave” provision for elected officials. There is no procedure for an elected official to take a leave of absence (with an exception as to judges). (Our Opinion No. 86-108.) The generic term “leave of absence” is not applicable to elected officials as it would be to County employees or appointive officers. (Id.) There are no minimum hours for an elected official to work. (See, 33 Op. Cal. Att’y Gen. 62, 63 (1959); Our Opinion Nos. 78-139, 86-108, 93-308.)

    (5)May the Sheriff be involuntarily deprived of his salary during his self-imposed leave of absence?
    An elected official generally may determine to take time off for personal reasons in his or her discretion. It is well-established that an elected officer receives the salary fixed for the office as an incident of the office. (People v. Harrington, 63 Cal. 257, 260 (1883) (an office is “a right to exercise a public function or employment, and to take the fees and emoluments belonging to it”).) There is no provision in the law for depriving an elected officer of his or her salary during the officer’s temporary absence from his or her duties on account of personal reasons.

    Article I, Section 9 of the California Constitution provides: “A bill of attainder, ex post facto law, or law impairing the obligations of contracts may not be passed.” This has been interpreted to prevent decreasing the salaries of public officers once they have entered into a term. In Olson v. Cory, 27 Cal. 3d 532 (1980), the California Supreme Court held that the salary of judges could not be lowered, for judges who had entered into their terms, by placing a cap on the cost of living increase which had been enacted prior to their entry into their terms. It should be noted that the Court could have decided the issue solely on the basis of Article III, Section 4(a) of the California Constitution which prohibits the reduction of the salaries of elected state officers during their term. However, the Court went beyond that, and held that such a reduction during the term would, in effect, impair the obligation of the “contract” between the judges and the State:

    “[W]e deal here with the right to compensation by persons serving their terms of public office to which they have undisputed rights. [P]ublic employment gives rise to certain obligations which are protected by the contract clause of the Constitution. Promised compensation is one such protected right. Once vested, the right to compensation cannot be eliminated without constitutionally impairing the contract obligation. (Citations omitted.)”

    (Olson v. Cory, 27 Cal. 3d at 537-538 (emphasis added).)

    The Court indicated that the terms of this “contract” are fixed at the time the judge enters office: “A judge entering office is deemed to do so in consideration of—at least in part—salary benefits then offered by the state for that office.” (Id. at 539.)

    However, the Board’s power to set the compensation of county officers is broad. (Gov’t Code § 25300. (“The board of supervisors shall prescribe the compensation of all county officers . . . .”); Hall v. Williams, 2 Cal. 2d 186 (1934).) The Attorney General has concluded that, barring a constitutional or statutory prohibition, if a particular body has the power to fix salaries, it follows that this power gives the body the authority both to increase and to decrease compensation, and the timing of the change in such salaries is vested in that body. (61 Op. Cal. Att’y Gen. 384 (1978); 62 Op. Cal. Att’y Gen. 356 (1979).) It is important to note that these opinions pre-date Olson v. Cory, supra.

    In any event, the Peace Officer Bill of Rights (“POBRA”) applies to those classified as “peace officers” under Penal Code sections 830.1, et seq. Penal Code section 830.1 defines peace officers as “[a]ny sheriff, under sheriff, or deputy sheriff . . . . .” Therefore, if the Board wished to suspend the Sheriff’s salary during his absence and assuming ultimate authority to do so exists, the Board would first have to comply with POBRA’s procedural requirements. (See also, Bostean v. L.A. Unified Sch. Dist., 63 Cal. App. 4th 95, 113-114 (1998) (court held due process required a predeprivation hearing before district took away salary of employee on involuntary leave of absence).)

    (6) When does a vacancy in office occur?
    An incumbent elected officer holds that office until the occurrence of an event that creates a vacancy. (See Gov’t Code § 1770.) Apart from resignation, there are several ways a vacancy in office may occur.

    (a) Government Code section 1770(g) provides that an office becomes vacant before the expiration of the term if the officer “ceas[es] to discharge the duties of his or her office for a period of three consecutive months, except when prevented by sickness, or when absent from the state with the permission required by law.”

    (b) Government Code section 1770(h) provides that an office becomes vacant if the officer is “convict[ed] of a felony or of any offense involving a violation of his or her official duties. An officer shall be deemed to have been convicted under this subdivision when trial court judgment is entered. For the purposes of this subdivision, ‘trial court judgment’ means a judgment by the trial court either sentencing the officer or otherwise upholding and implementing the plea, verdict, or finding.”

    (c) If a public official engages in conduct that falls within the statutory definition of willful or corrupt conduct, the Grand Jury is authorized, with the assistance of the District Attorney, to initiate, by accusation, the removal of that officer from office.

    The statutory grounds for an accusation are set forth in Government Code section 3060, which reads as follows:

    “An accusation in writing against any officer of a district, county, or city, including any member of the governing board or personnel commission of the school district or any humane officer, for willful or corrupt misconduct in office, may be presented by the grand jury of the County for or in which the officer is elected or appointed. An accusation may not be presented without the concurrence of at least 12 grand jurors, or at least eight jurors in a county in which the required number of grand jurors is 11.”

    The accusation proceeding is conducted like an indictment hearing before the Grand Jury. Probable cause is the burden of proof necessary to present an accusation. The concurrence of twelve grand jurors is needed to present an accusation. The accusation is then delivered by the foreman of the grand jury to the district attorney of the county, unless the district attorney is the officer accused. (Gov’t Code § 3062.) The District Attorney shall have a copy of the accusation served upon the defendant, and by notice in writing require the accused to appear in court. (Gov’t Code § 3063.) The District Attorney’s duty to serve the accusation is ministerial and involves no discretion on his or her part. Bradley v. Lacy, 53 Cal.App.4th 883 (1997). The appearance of the accused shall not be required in less than 10 days from the service of the notice. The accused may object to the sufficiency of the accusation, deny the truth of the accusation, in which case it shall be set for trial, or enter a plea of guilty. The accused is entitled to a jury trial in Superior Court. The allegation must be proven beyond a reasonable doubt. (Gov’t Code § 3070.) The sole penalty is removal from office. There can be no jail time or monetary fine imposed, no probation, and no restitution ordered.

    (d) An office will become vacant if the incumbent is recalled by the voters in accordance with the provisions of the Elections Code. (See, Elec. Code § 11200, et seq.) The recall process may be commenced only with a voter-signed recall petition.

    (7) May an elected official suspend his or her leave and return to work?
    Yes, the elected official may return to work at any time.

    (8) What is the difference between leave of absence and administrative leave?


    Administrative leave is taken at the employer’s direction without any finding that the employee committed wrongdoing. The employee is asked to not report to work. Since it is not punitive, administrative leave is with pay. There is no legal provision to put an elected official on administrative leave.

    (9) What is the Sheriff’s current job status?

    The Sheriff has taken a voluntary, 60-day “leave of absence,” as he has termed it. Technically, the Sheriff is not on a leave as that term is used in the PSR. He continues to exercise the authority of his office by delegating his duties and responsibilities to Undersheriff Galisky.

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