Opinion
Rehearing Denied Oct. 20, 1993.
Review Granted Dec. 30, 1993.
Review Granted Previously published at: 29 Cal.App.4th 159, 18 Cal.App.4th 1520, 23 Cal.App.4th 1050 [Copyrighted Material Omitted] COUNSEL
[23 Cal.Rptr.2d 65] Bobbitt & Gattey, James M. Gattey and Vicki L. Gilbreath, San Diego, for plaintiff and appellant.
Edwin L. Miller, Jr., Dist. Atty., Thomas F. McArdle and James E. Atkins Deputy Dist. Attys. as amici curiae, for plaintiff and appellant.
Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, and Valerie Tehan, Deputy County Counsel for defendants and respondents.
Procopio, Cory, Hargreaves & Savitch, James G. Sandler, Lynne R. Lasry and David A. Niddrie, San Diego, for intervener and respondent.
OPINION
WIENER, Acting Presiding Justice.
May a charter county, here San Diego County (County), amend its charter to provide for the creation of a citizens' panel to review citizen complaints about the county sheriff's and probation departments and, more specifically, grant to that panel the power to subpoena witnesses and evidence? Plaintiff Randy Dibb did not think so and therefore filed this action seeking to prevent the County from spending public funds to implement section 606 of the County Charter, enacted by voters in November 1990, which created the Citizens Law Enforcement Review Board (CLERB). Dibb argued the County cannot constitutionally grant CLERB the subpoena power. The trial court rejected his argument and denied Dibb's application for a permanent injunction.
We conclude the San Diego County Board of Supervisors (Board) was fully authorized to create CLERB based on its statutory responsibility to supervise the official conduct of all county officers, including the sheriff and chief probation officer. Because the California Constitution provides that county charters shall specify the " powers and duties" of county officers, the County was also permitted to include the subpoena power as one of CLERB's enumerated powers. Accordingly, the trial court properly denied Dibb's request for a permanent injunction.
FACTUAL AND PROCEDURAL BACKGROUND
In 1990 the Board proposed an amendment to the County Charter, adding section 606 requiring the Board to create CLERB. County voters approved the amendment in November 1990. Subdivision (f)(2) of section 606 provides the Board shall establish CLERB's duties which may include the review and investigation of citizen complaints and any deaths of individuals " arising out of or in connection with actions of peace officers." Subdivision (d) states CLERB [23 Cal.Rptr.2d 66] " shall have the power to subpoena and require attendance of witnesses and the production of books and papers pertinent to its investigations and to administer oaths."
In section 340.9 of the implementing ordinance adopted by the Board in April 1991, the duties of CLERB were specified as follows:
Pursuant to Code of Civil Procedure section 526a, Dibb brought this action as a county taxpayer seeking to enjoin the County from spending funds in order to implement CLERB.
DISCUSSION
Government Code section 25303 requires a county board of supervisors to " supervise the official conduct of all county officers ... and particularly insofar as the functions and duties of such county officers ... relate to the assessing, collecting, safekeeping, management, or disbursement of public funds." The section goes on to note the " independent and constitutionally and statutorily designated investigative and prosecutorial functions of the sheriff and district attorney" which shall not be " affect[ed]" or " obstruct[ed]." Dibb does not seriously dispute that pursuant to this section, the operations of the sheriff's and probation departments and the conduct of employees of those departments are a legitimate [23 Cal.Rptr.2d 67] concern of the Board. Review of citizen complaints and peace officer-related deaths might suggest the need for new or different types of training for personnel in the two departments which the Board would have to fund. Politically the Board might be concerned about public distrust of investigations conducted by either the sheriff or district attorney and hopeful that investigations by a group not aligned with law enforcement would restore public confidence, particularly if that group reached conclusions consistent with the sheriff and district attorney.
The San Diego County District Attorney has filed an amicus brief in support of Dibb arguing, among other things, that CLERB will obstruct and infringe on the functions of the sheriff and district attorney. It is unclear from the argument whether the mere existence of CLERB is viewed as an obstruction or whether it is CLERB's subpoena power which creates the interference. The former argument would appear to raise issues beyond the scope of Dibb's appeal. In any event, the concern would seem to be answered by Government Code section 25303 which specifies that the Board's supervisory responsibility " shall not obstruct the investigative function of the sheriff of the county nor shall it obstruct the investigative and prosecutorial function of the district attorney of a county." Moreover, section 340.15 of the enabling ordinance requires CLERB to cooperate and coordinate with the sheriff and district attorney so that all three can properly discharge their responsibilities. We certainly cannot assume at this point that CLERB will necessarily interfere with the proper functioning of two other county officials.
In view of our conclusions it is unnecessary to address the County's alternative contention that Penal Code section 832.5 authorizes the County, as distinguished from individual county agencies such as the sheriff's department, to create procedures to investigate citizen complaints. Certainly the creation of CLERB is not inconsistent with the policy underlying the statute " to encourage communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing." (71 Ops.Cal.Atty.Gen. 1, 2 (1988).)
Given that oversight of the sheriff's and probation departments is a legitimate responsibility of the Board, it is also clear that the Board may create a citizens' commission to assist it in fulfilling this responsibility. Government Code section 31000.1 provides: " The board of supervisors may appoint commissions or committees of citizens to study problems of general or special interest to the board and to make reports and recommendations to the board." Clearly CLERB is a citizens' commission which falls within this broad definition.
Having created an authorized entity to study issues within the legitimate scope of the Board's responsibilities, the question remains whether the County charter may grant to this entity the power to subpoena witnesses and documents to assist in its investigations. In Brown v. City of Berkeley (1976) 57 Cal.App.3d 223, 129 Cal.Rptr. 1 the court confronted a similar issue which arose in the context of a charter city's attempt to create a police review commission with the subpoena power. Government Code section 37104 grants the subpoena power to California city councils just as section 25170 grants the power to county boards of supervisors. The appellant in Brown argued there was no legislative authorization for the city charter to confer the subpoena power on a subordinate city agency:
" [A]ppellant's contention that article V, section 20, of the charter is preempted by state law, to wit, Government Code section 37104 lacks merit. Government Code section 37104 only grants subpoena power to a city's legislative body, whereas Berkeley's City Charter additionally grants subpoena power to commissions provided for in the charter. However, charter cities are not subject to, or controlled by, provisions of the general law which conflict with the provisions of their charter in respect to ‘ municipal affairs.’ [Citation.] The subpoenaing of witnesses and documents concerning a matter pending before a city commission is a municipal affair, and therefore Government Code section 37104 does not control." (Id. at p. 236, 129 Cal.Rptr. 1.)
In response to Brown, Dibb argues there are significant differences between charter cities and charter counties which compel a different result in this case. Specifically, Dibb points to the fact that under article 11, section 5 of the California Constitution, [23 Cal.Rptr.2d 68] with respect to " municipal affairs," " [c]ity charters adopted pursuant to this Constitution shall supersede ... all laws inconsistent therewith." There is no similarly broad constitutional provision with respect to county charters. Instead, section 4 of article 11 merely lists the topics which a county charter " shall provide for." It is only as to those limited topics, Dibb argues, that a properly adopted charter provision supersedes general law.
The general framework of Dibb's argument is consistent with Younger v. Board of Supervisors (1979) 93 Cal.App.3d 864, 155 Cal.Rptr. 921 which explained:
" ‘ It is elementary law that a charter provision relating to county officials is valid only if authorized by the state Constitution.’ [Citations.] Since counties constitute merely political subdivisions of the state [citations], they have independently only such legislative authority that has been expressly conferred by the Constitution and laws of the state. If the latter sources are silent in regard to the delegation of such authority, the authority must still rest with the Legislature. [Citation.] However, if a charter provision is properly authorized, then it supersedes general state laws in conflict, but only to the extent it is not limited by the Constitution." (Id. at p. 870, 155 Cal.Rptr. 921.)
Dibb refers to subdivision (h) of article 11, section 4 which provides that " [c]harter counties shall have all the powers that are provided by this Constitution or by statute for counties." He asserts there is no statutory or constitutional provision authorizing a county to confer the subpoena power on county boards or officials. Accordingly, he argues, the charter amendment purporting to confer such power on CLERB is invalid.
In his attempt to reach a desired conclusion, Dibb unnecessarily restricts the scope of our inquiry. As Younger made clear, article 11, section 4 authorizes charter counties to legislate on a variety of local topics, most of which relate to the structure and operation of county government. In particular, subdivision (e) specifies that the county charter shall provide for " [t]he powers and duties of ... all ... county officers...." Given that members of CLERB perform a public function, are appointed to a fixed " term of office" but serve without compensation (see Coulter v. Pool (1921) 187 Cal. 181, 186-187, 201 P. 120), they qualify as " county officers" within the meaning of section 4, subdivision (e). Thus the county is clearly authorized to specify in the charter or by ordinance their " powers." Here the County has done so and has included among their powers the authority to issue subpoenas. This distinguishes the case from Younger, which emphasized that the Constitution did not authorize counties to vary the qualifications of elected county officials. (93 Cal.App.3d at p. 872, 155 Cal.Rptr. 921.)
" [T]he intent behind [article 11, section 4] was to extend the option of ‘ home rule’ to counties, the right of self-government over local and county affairs...." (Younger, supra, 93 Cal.App.3d at p. 869, 155 Cal.Rptr. 921.) Its provisions must be interpreted in light of this purpose. Utilization of the subpoena power is not in any sense inconsistent with the function of local government. As we have seen, cities may confer the subpoena power on citizen police review boards. (Brown v. City of Berkeley, supra, 57 Cal.App.3d at p. 236, 129 Cal.Rptr. 1.) In addition, as a general proposition, the Legislature has seen fit to confer the subpoena power on boards of supervisors in all counties, not just charter counties. (See Govt.Code, § 25170.) Moreover, as a practical matter, eliminating the subpoena power would frustrate CLERB's salutary purposes (see ante, p. 67) because it is likely many peace officers and other critical witnesses would not appear voluntarily. As one court has noted in a somewhat context, " Without the power to subpoena witnesses, hearings before [a civilian review] board would be inadequate. This would be especially true in the case of police officer witnesses. Nor could one expect a police officer charged with misconduct to appear before the board without subpoena. Hearings before the board without such witnesses, in all likelihood would render the [23 Cal.Rptr.2d 69] board only an instrument for public relations." (City of Newark v. Benjamin Ch.Div. (1976) 144 N.J.Super. 58, 364 A.2d 563, 571-572.) We therefore conclude the provisions of the California Constitution which authorize " home rule" by charter counties permit such a county, in delineating the powers of county officers and employees, to confer on a citizens' review board the authority to subpoena witnesses and documents in furtherance of its investigations. Accordingly, the trial court properly denied Dibb's request for a permanent injunction.
The court's comments in the City of Newark case were made in the context of rejecting an argument that an invalid subpoena provision could be severed from the remainder of an ordinance creating a Civilian Complaint Review Board. The court had earlier declared the subpoena provision invalid, concluding that a municipality could not create the power of subpoena because " [e]very instance in which subpoenas may be issued in this State is one in which the basic authority comes from a statute." (364 A.2d at p. 571.) There is no discussion in the case of any constitutional provisions comparable to article 11, sections 4 and 5 of the California Constitution which grant charter cities and counties a certain degree of independence in legislating on topics of purely local concern. As we have noted, Dibb does not dispute the California authority holding that a charter municipality can confer the subpoena power on a civilian police review board. (See Brown v. City of Berkeley, supra, 57 Cal.App.3d at p. 236, 129 Cal.Rptr. 1.)
We also note that our conclusion is also consistent with the Attorney General's Opinion 51-206. In that opinion, the Attorney General cited the predecessors to subdivisions (e) and (f) of article 11, section 4 and concluded that a county board of supervisors was authorized to enact an ordinance giving the subpoena pore to a county civil service commission. (18 Ops.Cal.Atty.Gen. 236, 238 (1951).)
DISPOSITION
Judgment affirmed.
WORK and FROEHLICH, JJ., concur.
" (a) Receive, review and investigate citizen complaints filed against peace officers or custodial officers employed by the County in the Sheriff's Department or the Probation Department which allege: (A) use of excessive force; (B) discrimination or sexual harassment in respect to members of the public; (C) the improper discharge of firearms; (D) illegal search or seizure; (E) false arrest; (F) false reporting; (G) criminal conduct; or (H) misconduct. The Review Board shall have jurisdiction in respect to all citizen complaints arising out of incidents occurring on or after November 7, 1990; provided, however, that the Review Board shall not have jurisdiction to take any action in respect to complaints received more than one year after the date of the incident giving rise to the complaint. All action complaints shall be in writing and the truth thereof shall be attested under penalty of perjury. ‘ Citizen complaints' shall include complaints received from any person whatsoever without regard to age, citizenship, residence, criminal record, incarceration, or any other characteristic of the complainant. ‘ Misconduct’ is defined to mean and include any alleged improper or illegal acts, omissions or decisions directly affecting the person or property of a specific citizen by reason of:
" 1. An alleged violation of any general, standing or special orders or guidelines of the Sheriff's Department of the Probation Department; or
" 2. An alleged violation of any state or federal law; or
" 3. Any act otherwise evidencing improper or unbecoming conduct by a peace officer or custodial officer employed by the Sheriff's Department or the Probation Department.
" (b) The Review Board shall have no authority pursuant to this subdivision to take action in regard to incidents for which no citizen complaint has been filed with the Review Board.
" Review and investigate the death of any individual arising out of or in connection with actions of peace officers or custodial officers employed by the County in the Sheriff's Department or the Probation Department, regardless of whether a citizen complaint regarding such death has been filed with the Review Board. The Review Board shall have jurisdiction in respect to all deaths of individuals coming within the provisions of this subdivision occurring on or after November 7, 1980; provided, however, that the Review Board may not commence review or investigation of any death of an individual coming within the provisions of this subdivision more than one year after the date of the death.
" (c) Prepare reports, including at least the Sheriff or the Probation Officer as recipients, on the results of any investigations conducted by the Review Board in respect to the activities of peace officers or custodial officers, including recommendations relating to the imposition of discipline, including the facts relied on in making such recommendations, and recommendations relating to any trends in regard to employees involved in citizen complaints. The Review Board is not established to determine criminal guilt or innocence.
" (d) Prepare an annual report to the Board of Supervisors, the Chief Administrative Officer, the Sheriff and the Probation Officer summarizing the activities and recommendations of the Review Board including the tracking and identification of trends in respect to all complaints received and investigated during the reporting period.
" (e) Notify in writing any citizen having filed a complaint with the Review Board of the disposition of his or her complaint. The Chief Administrative Officer shall also receive appropriate notification of the disposition of citizen complaints. Such notifications shall be in writing and shall contain the following statement: ‘ In accordance with Penal Code section 832.7, this notification shall not be conclusive or binding or admissible as evidence in any separate or subsequent action or proceeding brought before an arbitrator, court, or judge of California or the United States.’
" (f) Review and make recommendations on policies and procedures of the Sheriff and the Probation Officer to the Board of Supervisors, the Sheriff and the Chief Probation Officer.
" (g) Annually inspect county adult detention facilities and annually file a report of such visitations together with pertinent recommendations with the Board of Supervisors, the Presiding Judge of the Superior Court, the Sheriff, the Board of Corrections and the Attorney General. Inspections shall be concerned with the conditions of inmate employment detention, care, custody, training and treatment on the basis of, but not limited to, the minimum standards established by the Board of Corrections.
" (h) Establish necessary rules and regulations for the conduct of its business, subject to approval of the Board of Supervisors."