The Orange County Board of Supervisors. From left: Michelle Steel, Shawn Nelson, Todd Spitzer, Lisa Bartlett, and Andrew Do. (Photos by Nick Gerda and Katlin Washburn)

A majority of Orange County supervisors have turned down a request for their law enforcement watchdog to look into whether the District Attorney’s Office and Sheriff’s Department are continuing the illegal use of informants and withholding evidence, an issue previously described by an appeals court as a “systemic problem” within the agencies.

Supervisor Todd Spitzer, who is running for district attorney against incumbent Tony Rackauckas in the June election, last week asked his board colleagues to direct Kevin Rogan – the new director of the county’s Office of Independent Review, or “OIR” – to examine a new lawsuit filed against the county and report back to the supervisors in closed session.

The lawsuit, by the American Civil Liberties Union of Southern California (ACLU), alleges the DA and Sheriff’s Department continue to use illegal jailhouse informants in violation of the constitutional rights of criminal defendants. Rackauckas and Sheriff Sandra Hutchens have both denied their agencies intentionally misused informants or withheld evidence.

County supervisors oversee the county’s legal defense against lawsuits, as well as the county’s finances, including when the county pays out settlements and court judgements due to lawsuits.

Spitzer wanted the Office of Independent Review to give supervisors an analysis of the case with recommendations for the county to prevent future legal risks.

The other four board members turned down his request, saying its not necessary while the ACLU case is ongoing. They also said lawyers defending the county in the case already are advising the supervisors.

A state appeals court ruled in November 2016 the DA’s office and Sheriff’s Department improperly used informants inside the jails and failed in their legal duty to disclose key evidence that could have been helped defendants argue their innocence.

The law enforcement agencies’ actions “violated targeted defendants’ constitutional rights,” said the unanimous ruling by the appeals court.

The informant disclosures led to convictions being overturned for murder or other major crimes in at least six criminal cases. In one of those cases, accused killer Isaac Palacios had one murder charge dismissed, and in a second murder charge the DA agreed to a plea deal that granted him probation.

“The magnitude of the systemic problems cannot be overlooked,” the appeals court ruled.

The misuse of informants became known as the jailhouse snitch scandal because informants were used inside the jails to get confessions from suspects after they were represented by attorneys, a violation of the inmates’ constitutional rights.

The misuse of informants led to the DA being kicked off the prosecution of Scott Dekraai— the county’s worst-ever mass murderer.

Spitzer told the other supervisors “the OIR is supposed to analyze procedures and practices. And the allegation of the lawsuit is really clear: It’s that procedures and practices…with respect to the use of informants is still an ongoing practice that is unlawful.”

“I don’t know if that’s true or not. Right?” Spitzer continued. “But we hired the OIR to help us with questions. Shouldn’t OIR be at least giving us some parallel advice about practices that are the subject matter of the lawsuit?”

“While we have pending litigation, the answer would be no,” replied Board of Supervisors’ Chairman Andrew Do.

“Okay, so you don’t even want that advice in closed session?” Spitzer asked.

“I think it’s improper for us to talk about, really, that subject matter now,” Do said.

The issue could be put on a future agenda for discussion if supervisors wanted, Do added. None of the supervisors, besides Spitzer, expressed interest in it. At the end of the discussion Do said no action had been taken.

Do and Supervisors Lisa Bartlett and Michelle Steel have endorsed Rackauckas for re-election. Spitzer has said he has declined to accept endorsements from people who currently hold elected office, saying he wants to maintain his independence.

Supervisor Shawn Nelson said “it would be a total waste of time” to have Rogan spend his time analyzing the ACLU allegations when the county’s defense attorneys are already doing so.

“I don’t have the money, the budget or the time to have people doin’ double duty,” Nelson said.

Do has previously said the supervisors are limited in their ability to supervise the DA’s office because its leader is “independently elected.”

“We have budgetary oversight, and that’s about all we have,” Do said at a supervisors’ meeting last May.

The county OIR’s main mission is to explore liability issues from any potentially problematic practices within the sheriff’s department, DA’s office and other county law enforcement agencies.

Supervisors expanded the review office in December 2015 to include examining “systemic issues and specific incidents” at the District Attorney’s Office, and for the office to have the same access to confidential records as the county counsel.

Rackauckas’ office has said the OIR can look at records and make recommendations to supervisors, but that supervisors don’t have the authority to change how the DA’s office is run.

The OIR has had no staff for two years, after supervisors pushed out the original director, Stephen Connolly in March 2016 and did not bring on a replacement.

The board voted to hire a replacement, Gary W. Schons, in January 2017. But that fell apart, amid stated concerns about conflicts of interest with his law firm, and the position lay vacant for more than another year.

Last month the supervisors hired Rogan, the assistant inspector general of the Los Angeles Police Department, as the new OIR. Rogan started in his new county job on April 6, county CEO Frank Kim said at the supervisors’ meeting last week.

Rogan’s county taxpayer compensation totals $323,000 each year, including a $210,000 base salary plus benefits, according to the Orange County Register.

The ACLU’s last lawsuit over Orange County District Attorney practices ended in 2013 and centered on the DA’s office restricting the rights of alleged gang members.

The county lost the lawsuit, with the 9th Circuit finding the DA violated the U.S. Constitution by enforcing an anti-gang injunction without giving at least 50 county residents a chance to show they weren’t gang members.

County taxpayers reportedly paid about $6 million as a result of the county losing the case. About $4 million went to the ACLU, and Spitzer said last week another $2 million was spent on the county’s legal defense.

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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