Essick v. County of Sonoma ( 2022 )

UNREDACTED
Filed 6/29/22; unsealed 7/29/22.
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
MARK ESSICK,
Plaintiff and Appellant, A162887
v. (Sonoma County Super. Ct.
COUNTY OF SONOMA et al., No. SCV-267581)
Defendants and Respondents.
Following the submission to the County of Sonoma (the County) of a
harassment complaint against Mark Essick, the elected sheriff of the County,
an independent investigator, Ms. Amy Oppenheimer, conducted an inquiry
and prepared a written report. A local newspaper requested that the County
release the complaint, the report, and various related documents (collectively,
the Oppenheimer Report) pursuant to the California Public Records Act
(CPRA) (Gov. Code, § 6250 et seq.). Sheriff Essick objected to the County’s
release of the Oppenheimer Report. In this “reverse” CPRA action, the trial
court denied his request for a preliminary injunction barring the
Oppenheimer Report’s release.
Sheriff Essick appeals, contending the trial court erred because (1) the
Oppenheimer Report should be classified as confidential under an exemption
to the CPRA (Gov. Code, § 6254, subd. (k)), either as a “peace officer[]”
“personnel record[]” (Pen. Code, §§ 832.7, subd. (a), 832.8, subd. (a)) or
because it constitutes a “report[] or findings” relating to a complaint by a
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member of the public against a peace officer (Pen. Code, §§ 832.5, subd. (b),
832.7, subd. (a)); and (2) the County should be estopped to release the
Oppenheimer Report because it promised him that, in conducting its
investigation, it would abide by Government Code section 3300 et seq. (the
Public Safety Officers Procedural Bill of Rights Act) (POBRA), and it
therefore should be bound to keep the results of the investigation
confidential.1 We disagree on both points and will affirm.
I. BACKGROUND2
In August 2020, while a large and complex set of wildfires swept
through portions of Sonoma County in close proximity to many homes, Sheriff
Essick met with the County Board of Supervisors, fire officials, and members
of the public in a streamed town hall meeting. During the meeting, Sheriff
Essick provided updates on an evacuation strategy and fielded questions
from the public. When asked a question concerning whether evacuated
residents might be permitted to reenter mandatory evacuation zones to feed
pets and animals left behind, Sheriff Essick refused to grant such permission,
citing safety concerns.
Following the meeting, Sheriff Essick exchanged text messages with
Lynda Hopkins, an elected member of the Sonoma County Board of
Supervisors. Supervisor Hopkins started the exchange, asserting her belief
there should be an evacuation process for pets and livestock, since the fire
risk in the areas involved was high but not yet extreme. Sheriff Essick
1 See Pitchess v. Superior Court (1974) 11 Cal.3d 531.
2We have concurrently filed public (redacted) and sealed (unredacted)
versions of this opinion. We hereby order the unredacted version sealed until
30 days from the date this opinion is filed. Both the redacted and unredacted
versions shall be provided to the parties. Omissions in the public (redacted)
version are shown by greyed out portions of the language in the opinion.
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replied dismissively, telling Supervisor Hopkins there was already a process
in place for livestock, and that pets “should have been evacuated already.”
He also commented that Supervisor Hopkins’s preference for local firefighters
rather than sheriff ’s deputies and police officers was “painfully obvious” and
that she should “quit with the crap and come together for our community.”
He also left a text telling Supervisor Hopkins to call him if she wanted to
discuss further.
In a later phone conversation between Supervisor Hopkins and Sheriff
Essick, the tension between them rose. According to Supervisor Hopkins and
her husband Emmett Hopkins, who overheard the conversation on speaker
phone, Sheriff Essick criticized Supervisor Hopkins, accused her of “using
gender as a cover” to hide her “failures as a leader,” stated he would do
whatever he could to expose her as a fraud, and informed her she was not his
boss. Sheriff Essick’s recollection of the conversation differed. In his version
of what happened, Supervisor Hopkins accused him of being a bigot and a
misogynist and said he is a “small man with a fragile ego who is afraid of
women.” Sheriff Essick claims he told Supervisor Hopkins he had great
respect for women in leadership positions. He denies making many
statements attributed to him, including saying that Supervisor Hopkins was
“manipulative,” “deceptive,” not to be trusted, and had “no friends in this
office.”
Immediately after the phone call, Supervisor Hopkins lodged a
complaint against Sheriff Essick with the Sonoma County Administrator,
Sheryl Bratton, alleging harassment.3 Ms. Bratton forwarded the complaint
Under section 2-8 of the Sonoma County Code, the duties of the
3
County Administrator are described as follows: “Supervise, direct and
coordinate the administration of all county offices, departments and
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to the County Human Resources Director, Christina Cramer, who conducted
an intake interview of Supervisor Hopkins. In September 2020, County
Administrator Bratton, County Human Resources Director Cramer, County
Counsel Robert Pittman, and Susan Gorin, the chair of the Sonoma County
Board of Supervisors, jointly retained the Law Offices of Amy Oppenheimer,
a private law firm, to conduct an impartial investigation of Supervisor
Hopkins’s allegations. After collecting and analyzing the facts,
Ms. Oppenheimer found by a preponderance of the evidence that Sheriff
Essick made statements to Supervisor Hopkins that would reasonably have
been understood as a veiled threat. But the findings also concluded that
these statements centered around political differences, not gender.
On December 16, 2020, the Board of Supervisors, in a letter over Chair
Gorin’s signature, gave Sheriff Essick “Formal Notice of Outcome of
Investigation,” which stated his comments and conduct directed at
Supervisor Hopkins were contrary to Sonoma County’s Governance
Standards.4 More specifically, the letter deemed Sheriff Essick’s behavior to
be in willful disregard of his role as the sheriff, demonstrated a lack of
professionalism, and was not to be tolerated. The letter stated the report and
admonishment would be placed in the investigation record along with the
final investigative report.
institutions, and the official conduct of all county officers . . . as to all matters
over which the board of supervisors has responsibility and control.”
4 We grant Sheriff Essick’s unopposed request that we take judicial
notice of the County’s “Formal Notice of Outcome of Investigation,” which
was not included in the trial court record. (Evid. Code, §§ 452, subd. (c), 459.)
We assume without deciding that the records of county entities fall within
the purview of Evidence Code section 452, subdivision (c).
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Before the Board of Supervisors sent its admonishment to Sheriff
Essick, the Press Democrat, a local newspaper, submitted a request under
the CPRA seeking disclosure of the final investigative report. The day the
Board sent its admonishment, County Counsel Pittman informed Sheriff
Essick the Board had received the Press Democrat’s CPRA request and
intended to release the documents we refer to here as the Oppenheimer
Report (i.e., the original complaint, the formal notice containing the outcome
of the investigation, the confidential executive summary of investigative
report, and a redacted copy of the confidential investigative report authored
by Ms. Oppenheimer). Diane Aqui, Sheriff Essick’s counsel, responded to
Mr. Pittman asserting the requested documents are personnel records and
investigative reports of a peace officer that are protected from disclosure
under Penal Code section 832.7. Mr. Pittman wrote back, expressing his
disagreement with Ms. Aqui’s interpretation of the Penal Code and informing
her the Board intended to release the records to the Press Democrat on
December 24, 2020.
On December 21, 2020, Sheriff Essick filed a complaint for declaratory
and injunctive relief against the County of Sonoma requesting the trial court
bar the release of the Oppenheimer Report to the Press Democrat. In the
complaint, Sheriff Essick requested a temporary restraining order and a
preliminary injunction to keep the Oppenheimer Report closed to the public
for the duration of the trial proceedings. The trial court issued the requested
temporary restraining order and set a hearing for March 2021. But on
May 19, 2021, the trial court entered a minute order denying the preliminary
injunction, ruling there was no evidence to show the investigative records
should be classified as “personnel records” (Pen. Code, § 832.7, subd. (a)) that
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are protected from public release. The court entered a written order on
June 7, 2021, denying the preliminary injunction.
Sheriff Essick appealed. We granted a temporary stay of the trial
court’s order on June 24, 2021, prohibiting the County from releasing the
Oppenheimer Report until further notice. On July 30, 2021, we granted
Sheriff Essick’s petition for a writ of supersedeas, ruling that, pending the
resolution of this appeal, the County may not release the subject records until
further notice. The parties subsequently filed their briefs on the merits of
this appeal.5
II. DISCUSSION
A. Statutory Landscape
Enacted in 1968 and modeled on the federal Freedom of Information
Act (5 U.S.C. § 552 et seq.), the CPRA “grants public access to public records
5 After the parties filed their briefs on the merits of the appeal, the
County filed a motion to strike, asking this court to either (a) strike certain
portions of Sheriff Essick’s reply brief that allegedly contain improper new
arguments, (b) disregard the challenged portions of the reply brief, or
(c) accept a surreply brief responding to the allegedly improper arguments.
Sheriff Essick filed an opposition to the motion to strike. Sheriff Essick also
filed a motion for leave to file a “sur surreply brief ” in the event this court
accepts the County’s surreply.
As to the County’s motion to strike, we will not address point by point
the parties’ detailed contentions in their motion papers as to whether
particular arguments made in Sheriff Essick’s reply brief are improper.
Suffice it to say that, in addressing the merits of this appeal, we have
considered only those arguments in Sheriff Essick’s reply brief that we view
as proper rebuttal (and to the extent we may have considered any arguments
the County believes to be improper, the County has suffered no prejudice, as
we are ruling in its favor on the merits of the appeal). We deny the
remaining relief requested by the County in its motion—we will not strike
portions of Sheriff Essick’s reply brief, and we will not accept the County’s
proposed surreply. Finally, we deny as moot Sheriff Essick’s motion for leave
to file a “sur surreply” that responds to the proposed surreply.
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held by state and local agencies. [Citation.] . . . ‘[It] was enacted for the
purpose of increasing freedom of information by giving members of the public
access to records in the possession of state and local agencies. [Citation.]
Such “access to information concerning the conduct of the people’s business,”
the Legislature declared, “is a fundamental and necessary right of every
person in this state.” ’ [Citation.]” (Becerra v. Superior Court (2020)
44 Cal.App.5th 897, 913 (Becerra).)
Consistent with its basic design favoring disclosure, the CPRA broadly
defines “ ‘[p]ublic records’ ” as including “any writing containing information
relating to the conduct of the public’s business prepared, owned, used, or
retained by any state or local agency . . . .” (Gov. Code, § 6252, subd. (e).)
This expansive framing of the statutory right of access—a right that is
ultimately rooted in our state Constitution (Cal. Const., art. I, § 3,
subd. (b)(2))—is fundamental to our approach to construing the statutory
scheme as a whole. (Becerra, supra, 44 Cal.App.5th at p. 913 [“CPRA must
be ‘broadly construed’ because its statutory scheme ‘furthers the people’s
right of access’ ”].) To be sure, “the [A]ct does not confer an absolute right of
access.” (Ibid.) In passing the CPRA, the Legislature declared it was
“ ‘mindful of the right of individuals to privacy.’ ” (Becerra, at p. 913, quoting
Gov. Code, § 6250.)
The CPRA balances the dual concerns for privacy and disclosure by
providing for various exemptions that permit public agencies to refuse
disclosure of certain public records. (Gov. Code, §§ 6254–6255.) “In 2004,
California’s voters passed an initiative measure that added to the state
Constitution a provision directing the courts to broadly construe statutes that
grant public access to government information and to narrowly construe
statutes that limit such access. (Cal. Const., art. I, § 3, subd. (b)(2).)” (Long
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Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 68
(City of Long Beach).) Applying these constitutionally grounded principles of
construction in a case involving a peace officer’s personnel file, our Supreme
Court held in 2014 that article I, section 3, subdivision (b)(2) of the California
Constitution “does not affect the construction of any statute ‘to the extent . . .
it protects [the] right to privacy, including any statutory procedures
governing discovery or disclosure of information concerning the official
performance or professional qualifications of a peace officer.’ (Cal. Const.,
art. I, § 3, subd. (b)(3).)” (City of Long Beach, supra, at p. 68.) But the
balance struck by the Legislature still favors disclosure in cases involving
peace officer records and all other kinds of records. That is because the party
opposing disclosure under any CPRA exemption always bears the burden of
proving the exemption applies (City of Long Beach, at p. 70; County of Los
Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 63–64), which means
that, on the facts, doubtful cases must always be resolved in favor of
disclosure.
Among the exemptions recognized within the CPRA scheme is the
umbrella protection of Government Code section 6254, subdivision (k). That
provision protects “[r]ecords, the disclosure of which is exempted or
prohibited pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.” (Gov. Code, § 6254,
subd. (k).) Succinctly put, Government Code section 6254, subdivision (k)
“ ‘incorporates other [disclosure] prohibitions established by law.’ ” (Copley
Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1283 (Copley Press),
quoting CBS, Inc. v. Block (1986) 42 Cal.3d 646, 656; City of Long Beach,
supra, 59 Cal.4th at p. 67.) Thus, to mark out the precise reach of
exemptions available under Government Code section 6254, subdivision (k),
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we must look beyond the CPRA itself, to privileges and confidentiality
protections defined elsewhere in the law.
Here, Sheriff Essick relies primarily on sections 832.7 and 832.8 of the
Penal Code. These two provisions are found within the statutory scheme
known as the Pitchess statutes. (Pen. Code, §§ 832.5, 832.7, 832.8.) Read
together, Penal Code sections 832.7 and 832.8 protect as “confidential” the
“personnel records of peace officers” and “information obtained from these
records.” (Pen. Code, § 832.7, subd. (a).) “Personnel records” means anything
in a file maintained under the officer’s name “by his or her employing agency”
(Pen. Code, § 832.8, subd. (a)) that relates to a variety of subjects in which an
officer may have a privacy interest, including, as pertinent here, the officer’s
“advancement, appraisal, or discipline” (id., subd. (a)(4)) or “[c]omplaints, or
investigations of complaints” concerning the performance of his or her duty
(id., subd. (a)(5); see City of Long Beach, supra, 59 Cal.4th at p. 68). Though
it is not his principal focus, Sheriff Essick relies as well on Penal Code section
832.5, which—by cross-reference (Pen. Code, § 832.7, subd. (a))—extends
overlapping confidentiality protection to records relating to investigations of
certain citizen complaints against peace officers “in the possession of the
[officer’s employing] department or agency.” (Pen. Code, § 832.5, subd. (b);
see id., subd. (a)(1).)6
6Following the enactment of certain amendments in 2019, the Pitchess
statutes “deem[] as nonconfidential—and subject to public inspection
pursuant to the CPRA—all records maintained by a state agency relating to
reports, investigations, or findings from incidents involving an officer’s
discharge of a weapon; an officer’s use of deadly force or force resulting in
great bodily injury; and incidents involving a sustained finding of a sexual
assault or dishonesty by an officer. ([Pen. Code,] § 832.7[, subd. ](b)(1)
(A)–(C).)” (Becerra, supra, 44 Cal.App.5th at p. 918.) As a broad descriptor
for complaints that are not subject to disclosure under Penal Code
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B. The County of Sonoma Is Not Sheriff Essick’s
“Employing Agency”
According to Sheriff Essick, “The ultimate question in this appeal is
whether the records sought to be disclosed are ‘personnel records’ within the
meaning of Penal Code § 832.8.” In a closely related line of argument, Sheriff
Essick contends that even if the records at issue here are not “ ‘personnel
records’ ” as defined by Penal Code section 832.8, they are confidential files
relating to the investigation of a “complaint[] by [a] member[] of the public”
against a peace officer under Penal Code section 832.5. Both strands of the
argument fail for the same reason: To support the “ ‘personnel records’ ”
version of the argument under Penal Code section 832.8 and the citizen
complaint version of the argument under Penal Code section 832.5, Sheriff
Essick must demonstrate that the County is his employer. We conclude he
has not met that burden.
That the County has chosen to pay its elected officials is immaterial to
its relationship to Sheriff Essick. (Sonoma County Code, § 21-5 [“The
unclassified service shall consist of: [¶] (a) All officers elected by the people”];
see generally Sonoma County Code, ch. 21 [“unclassified service” includes
those over whom Civil Service Commission lacks authority].) The county
sheriff is a public official elected by Sonoma County voters, and as such, is
ultimately responsible to them—not to the Board of Supervisors or anyone
section 832.7, subdivision (b)(1)(A)–(C), Sheriff Essick uses the term “non-
serious” complaints. We agree that Supervisor Hopkins’s complaint and the
finding relating to it were not per se disclosable under Penal Code section
832.7, subdivision (b)(1)(A)–(C), but to the extent that, implicitly, Sheriff
Essick suggests her complaint was “non-serious”—in a colloquial sense, since
that phrase appears nowhere in the statute—we do not endorse the language
he uses to describe the operation of the 2019 amendments to the Pitchess
statutes.
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else in county government. (Cal. Const., art. XI, § 1, subd. (b) [requiring
elected sheriff].)7 Not only does the Board of Supervisors lack power to hire
the county sheriff, it lacks power to fire the person in that office as well. The
Board of Supervisors, acting on behalf of the County, has no power to appoint
or terminate the sheriff. (Gov. Code, § 24205 [requiring elected sheriff even
in charter counties].)
Nor does the Board of Supervisors have disciplinary power over the
county sheriff. In commissioning the Oppenheimer Report, the Board of
Supervisors was fulfilling its “statutory duty to supervise the conduct of all
county officers.” (Dibb v. County of San Diego (1994) 8 Cal.4th 1200, 1210,
citing Gov. Code, § 25303 [creating that duty].) Contrary to Sheriff Essick’s
argument, Government Code section 25303 does not create an employer-
employee relationship between the Board of Supervisors and the county
sheriff. Rather, a county board has “oversight responsibility” as to an elected
sheriff but lacks power to direct how he or she performs official duties. (Dibb,
supra, 8 Cal.4th at pp. 1209–1210; cf. S. G. Borello & Sons, Inc. v.
Department of Industrial Relations (1989) 48 Cal.3d 341, 350 [in applying the
multiple criteria that determine the existence of an employment relationship
for purposes of worker’s compensation, “ ‘[t]he principal test of an
employment relationship is whether the person to whom service is rendered
has the right to control the manner and means of accomplishing the result
desired . . . .’ ”].)
The Board of Supervisors did, to be sure, issue an admonishment of
Sheriff Essick, but not every statement of disapproval is a “written
It matters not that the County Administrator and County Counsel
7
Pittman were also involved in the retention of Ms. Oppenheimer to carry out
the investigation; in doing so, they were acting as adjuncts to the Board of
Supervisors.
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reprimand” constituting “punitive action” within the meaning of POBRA.
The Board of Supervisors’ admonishment could only be a “reprimand” if the
Board of Supervisors were Sheriff Essick’s employer. “Reprimands” must
have employer-driven consequences—affecting promotion, advancement, or
pay, and potentially leading to discharge. Written reprimands of peace
officers are “punitive actions” only because they “ ‘may lead to the adverse
consequences . . . at some future time’ ” by the department issuing the
reprimand. (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 317
[italics added by Otto v. Los Angeles Unified School Dist. (2001)
89 Cal.App.4th 985, 996]; see Gordon v. Horsley (2001) 86 Cal.App.4th 336,
348 [written reprimand “punitive action” because it would “almost certainly
have an impact on his future opportunities for advancement in the sheriff ’s
department”]; Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209,
1222 [citizens review board’s non-disciplinary finding of misconduct “punitive
action” because it would “be considered in future personnel decisions affecting
[the] deputies and may lead to punitive action”]; Hopson v. City of Los
Angeles (1983) 139 Cal.App.3d 347, 353 [police commission’s report was
“punitive action” because of “its potential impact on the [officers’] career
opportunities”].) Sheriff Essick faces no such consequences here. 8
We are not persuaded that the Oppenheimer Report is “discipline” from
which the Sheriff might appeal. The Oppenheimer Report has no
consequence for Sheriff Essick’s duties, tenure, compensation, or benefits. If
criticism of the conduct of elected officials were “discipline” subject to a full
8Sheriff Essick cites Sparks v. Kern County Bd. of Supervisors (2009)
173 Cal.App.4th 794, but that case does not hold that an elected sheriff is an
employee of the Board of Supervisors within the meaning of the Pitchess
statutes. Cases are not precedent for propositions they do not consider.
(McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38.)
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array of due process rights for determining truth and accuracy, our
democracy would function rather differently than it does. Any statements
from members of the Board of Supervisors approving or disapproving Sheriff
Essick’s conduct, individually or collectively, are expressions of the
Supervisors’ own free speech rights and do not amount to discipline.
(Pickering v. Board of Education (1968) 391 U.S. 563, 574 [“statements by
public officials on matters of public concern must be accorded First
Amendment protection”].) The truth and accuracy of such statements must
be open to testing in the public square. Indeed, the fact we are dealing with
what may fairly be characterized as political speech among elected officials
toward one another underscores the importance of reading the CPRA in favor
of disclosure.
Ignoring the overarching governance and free speech aspects of the
situation here, Sheriff Essick urges us to treat him as a subordinate of the
Supervisors, subject to their charge. He insists the County must be his
“employer,” otherwise the investigation here would have been merely an idle
act. But he overlooks something basic about a system of divided government
in which there are checks and balances. One of those cross-checks, at county
level, is the oversight authority of the Board of Supervisors over other county
officers. (Gov. Code, § 25303.) A central role of the Board of Supervisors, like
any other legislative body, is to investigate the conduct of executive officials
and thereby shine a light on matters that the voters of the County may wish
to know. Here, the voters of the County have ultimate authority over the
county sheriff, and they are entitled to be informed as to that person’s
strengths, as well as weaknesses, successes and failures—including the
person’s ability to model traits of civility and respect for others that may be
expected in an official who should embody those values for the public.
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C. By Commissioning the Preparation of the Oppenheimer Report,
the County of Sonoma Did Not Take on the Role of Sheriff
Essick’s “Employer”
Changing gears, Sheriff Essick asserts that, under Copley Press v.
Superior Court, supra, 39 Cal.4th 1272, it is irrelevant whether the Board of
Supervisors is the sheriff ’s employing agency in the normal course, because,
on the facts presented here, “Sonoma County functioned as [Sheriff] Essick’s
employing agency by initiating the complaint intake, deciding to investigate,
determining the process of investigation, making a final determination,
issuing discipline, and maintaining the records” relating to the complaint.
Thus, Sheriff Essick argues, by investigating actions carried out by him in his
capacity as a “peace officer,” the Board of Supervisors effectively took on the
role of Sheriff Essick’s employer. We cannot agree.
Because the Oppenheimer Report was the product of an independent
outside inquiry, the holding in Copley Press does not apply. In that case, San
Diego’s Civil Service Commission performed statutorily mandated functions
as to internal peace officer discipline the county sheriff ’s department would
otherwise have handled. (Copley Press, supra, 39 Cal.4th at p. 1292.) There
was no dispute that the records there were produced in what was tantamount
to an internal personnel discipline process. Our Supreme Court found that
shifting this internal affairs function to an outside agency did not strip the
records at issue there of the protection they would have had if generated
internally. (Id. at p. 1294.) Here, by contrast, the Sonoma County Board of
Supervisors was performing an independent investigative inquiry.
Legislative oversight is something vastly different than the routine discipline
of a rank-and-file peace officer and cannot be compared to outsourcing a
routine internal discipline function.
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The more analogous precedent is Pasadena Police Officers Assn. v.
Superior Court (2015) 240 Cal.App.4th 268. In that case, the City of
Pasadena retained an independent consultant to review its police
department’s policies following a fatal shooting of an unarmed teenager. (Id.
at p. 274.) The Los Angeles Times and others sought disclosure of the
resulting report under the CPRA. (Pasadena Police Officers Assn., at p. 274.)
The trial court denied a preliminary injunction in the ensuing “reverse”
CPRA case, and the Court of Appeal affirmed. (Pasadena Police Officers
Assn., at pp. 274–275.) The court reasoned that the report did not reflect the
advancement, appraisal or discipline of the officers involved in the shooting,
and it refused to interpret the Pitchess statutes so broadly as to “ ‘sweep
virtually all law enforcement records into the protected category of “personnel
records.” ’ ” (Id. at p. 288.) So, too, here, Sheriff Essick’s argument, taken to
its logical conclusion, would allow the Pitchess statutes to be used as a veil to
conceal all records held by any agency or department of the County
concerning acts done in his official capacity if anything in those records is
critical of him or could in some way place him in an unflattering light. We
reject the argument. The Pitchess statutes, properly read, provide no shield
against embarrassment to an elected official who also happens to be a peace
officer.
D. Sheriff Essick’s Estoppel Claims Do Not Make the Records
Confidential
As a backup line of argument, Sheriff Essick contends that the
Oppenheimer Report is confidential because the County of Sonoma promised
him its investigation would comply with POBRA. According to Sheriff
Essick, the County of Sonoma’s agreement to conduct the investigation under
POBRA created an enforceable legal promise that the records would be
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confidential and he would have the right to a de novo administrative appeal,
“whether he was entitled to them or not.” We are not persuaded.
Because nothing in the POBRA statutory scheme explicitly grants or
mentions confidentiality from CPRA requests, there was no
misrepresentation or concealment of any material facts here. By voluntarily
granting Sheriff Essick POBRA protections, Sonoma County was offering to
go beyond what it was bound to do to ensure the investigation was
procedurally fair. That gave Sheriff Essick, for example, a right to have
counsel present during his interview and to have the interview conducted
under certain neutral conditions, but it did not create any right of
confidentiality. Sheriff Essick emphasizes that he was promised a right of
de novo administrative appeal, along with the other procedural protections
provided by POBRA; presumably, as we understand the argument, that
means he had a right to have the initial report and findings held in
confidence until he exhausted his administrative appellate rights. But since
POBRA is silent on confidentiality, any claimed expectation of a right to
appeal was independent of that issue. If the investigative report and findings
were to be treated as confidential, the only arguable legal source for that
protection came from outside of POBRA—specifically Penal Code sections
832.5, 832.7 and 832.8 of the Pitchess statutes, which, understandably,
supply the primary basis for the argument Sheriff Essick advances in this
appeal. Our conclusion that those statutes provide no confidentiality
protection eliminates any possible legal foundation for his estoppel argument
as well.
In the end, therefore, we reject Sheriff Essick’s POBRA-based estoppel
argument for the same reasons we reject his primary line of argument.
Absent any confidentiality protection provided by the Pitchess statutes, there
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is no substance to his estoppel claim. If Sheriff Essick believed Sonoma
County’s commitment to abide by POBRA procedures meant that any report
produced at the conclusion of the investigation would be “absolutely”
confidential, his claimed expectation of secrecy amounts to nothing more than
a misunderstanding of the law. He could not possibly have relied justifiably
on the County guaranteeing him a right to confidentiality that POBRA does
not provide. And he cannot now bootstrap his way to confidentiality by
invoking POBRA indirectly, via an estoppel argument that cannot be
supported by proof of misrepresentation, concealment or reasonable reliance.
III. DISPOSITION
The order of the trial court denying Sheriff Essick’s request for a
preliminary injunction is affirmed. This court’s July 30, 2021 order
prohibiting the County from releasing the records that are the subject of this
appeal shall expire 30 days from the date this opinion is filed. The
unredacted version of this opinion shall likewise remain sealed for 30 days
from the filing of this opinion. Once that period expires, the unredacted
version of this opinion shall become public and the County may release the
records, unless the California Supreme Court orders otherwise. Costs shall
be awarded to the respondents.
STREETER, J.
WE CONCUR:
POLLAK, P. J.
DESAUTELS, J.*
*Judge of the Superior Court of California, County of Alameda,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
17
UNREDACTED
Trial Court: Superior Court of California, County of Sonoma
Trial Judge: Hon. Jennifer V. Dollard
Counsel: Smith Dollar, Diane Aqui; Law Offices of Joseph G. Baxter and
Joseph G. Baxter, for Plaintiff and Appellant.
Colantuono, Highsmith & Whatley, Michael G. Colantuono,
Matthew C. Slentz, and Abigail A. Mendez, for Defendants
and Respondents.
Essick v. County of Sonoma – A162887