Santana: OC Deputy Union Pays Out $50K in Failed Bid to Seal Misconduct Records

JESSICA RUIZ, Voice of OC

The Orange County Sheriff's Department in Santa Ana.

Orange County’s Deputy Sheriff’s union paid out nearly $50,000 in attorney fees this past month to a Voice of OC-led media coalition that successfully challenged the deputies’ bid earlier this year to seal misconduct records made available for public review by recent state legislation.

State legislators and former Gov. Jerry Brown, responding to a brewing national crisis of confidence in the ability of local law enforcement to police itself, enacted SB1421 last fall to enable the public to see raw documents in cases of sustained findings of law enforcement misconduct related to use of force, sexual assaults on the public or lying while on duty.

Just about every large police union in California fought adoption of the law.

When the law went into effect this January, large police unions then challenged implementation in just about every county in the state by heading into court to block the release of misconduct records.

In similar fashion, the leadership of the Association of Orange County Deputy Sheriffs – President Tom Dominguez and Vice Presidents Juan Viramontes, Jeff Weaver, Ed Yee, Sergeant-at-arms Jack Songer, Secretary Roger Hilton and Treasurer Francisco Ochoa – went to OC Superior Court this past February to block the public release of misconduct records that would shed light on bad policing decisions.

Thanks to a smart decision by Superior Court Judge Nathan R. Scott, along with the legal efforts of a media coalition organized by Voice of OC – which included the LA Times and Southern California Public Radio – those efforts to keep public records secret were checked.

Orange County’s chief county attorney, County Counsel Leon Page, also initially opposed the Deputy Sheriff union effort in court and warned media outlets about the impending impact on their First Amendment rights.

Yet county supervisors, led by Supervisor Andrew Do – whom the deputies helped greatly in his 2016 narrow re-election victory with a six-figure, independent-expenditure mail campaign – publicly repudiated Page’s action and eventually ordered him to stand down.

Orange County supervisors publicly abandoned the public’s right to know about bad policing decisions, and even worse, official misconduct.

They didn’t see a problem with Sheriff’s Deputies being able to block implementation of SB1421 in Orange County.

Voice of OC took up the challenge on behalf of the public.

And won.

Quickly.

It was a huge risk as a small nonprofit to confront county supervisors and the deputy sheriff’s union in court as we took on the majority of legal costs in fighting efforts to destroy our democracy.

I am deeply proud that our newsroom, boardroom and donors all stood up.

Everyone immediately understood the risks of losing our right-to-know as a community.

There’s hope for Orange County.

We also found immediate partners to help finance a portion of our legal efforts, finding supportive friends at our media partner, the Los Angeles Times, which has been waging legal battles for similar records in counties throughout the state. Our other great media partner, Southern California Public Radio, also responded quickly to help share the weight of the legal bills.

Watching the great First Amendment lawyers that our effort funded in court – our chief litigator, CalAware’s legendary Kelly Aviles and her amazing teammates, Jeff Glasser for the L.A. Times and Karlene Goller for Southern California Public Radio – was, as always, deeply inspiring.

Indeed, having a front row seat to the real time defense of our democratic rights by these kinds of lawyers – really intelligent, effective, ethical people – is hard to do while staying quiet in court. They all did such a wonderful job of protecting our rights in open court that I often times wanted to cheer them on from the public cheap seat section.

Yet as inspiring as it was to watch these folks jump into a legal Octagon to defend our First Amendment rights, it’s also really frightening to see how fragile our democracy is up close.

The leaders of the AOCDS came really close in their bid to shut down our right to know about how policing in Orange County really works.

Their attorneys argued aggressively in court that SB1421 could not be applied retroactively and even questioned whether it could stand at all.

Yet when challenged by Aviles, their arguments just didn’t stand up in front of Judge Scott.

In fact, it didn’t take more than a few hearings to watch the AOCDS position erode under the scrutiny of Scott’s questioning.

Now, once AOCDS lost in court, their next aim was to try to muscle the media coalition on court costs while also trying to impose confidentiality on settlement of legal fees.

AOCD Attorney Richard Levine argued in official correspondence that the deputy union should be able to pay our media attorneys less money.

In all, media attorneys charged $49,252.80 for hours worked on the case.

AOCDS attorneys offered a total of $40,817.63 – which was refused.

Aviles told Levine and AOCDS in writing that as a matter of policy she does not negotiate fees.

She also noted that if the AOCDS attorneys wanted to complain about big legal bills, they only had themselves to blame.

“Your firm unilaterally chose to increase the time necessary in this lawsuit,” Aviles wrote, “including refusal to continue the ex parte hearing, name my clients as real parties, and stipulate to their intervention. Thus, there can now be no basis for objection to the amount of fees incurred.”

In addition, AOCDS attorneys argued that all of the “media intervenors” – as we are so lovingly called – should go silent on the fees settlement agreement, proposing that we “shall treat as confidential the existence of the AGREEMENT together with its terms and conditions to the extent permitted by law.”

My favorite AOCDS fantasy demand from Levine’s correspondence is where they stipulated, “Intervenors agree that if asked by a third party/person about recovery of attorney’s fees, all Intervenors can say is that the case resolved to the mutual satisfaction of the PARTIES.”

As you can see, we did not agree to discounting our legal fees or eroding our First Amendment rights.

“Under no circumstances will my clients agree to confidentiality of any kind or any limits on their First Amendment rights,” Aviles wrote back to Levine.

Note, this is their attitude when they lose in court and lose badly.

Yet the truly sad truth here is that the union leaders at AOCDS didn’t have to spend any of their members’ hard-earned dues on such legal misadventures in court.

All they apparently had to do here in Orange County was rely on their existing six-figure investment in Sheriff Don Barnes, another key player on this issue, like Do, who received pivotal support (as much as $600,000, according to campaign disclosures), through an independent campaign-mail effort from AOCDS.

So far, few reporters in Orange County are seeing any real movement on getting public access to review SB 1421-related documents as Barnes has kept the effort totally underfunded and understaffed.

We began this effort in January.

It’s now June and we haven’t seen one document – even though the County of Orange stipulated in court months ago that it had an ongoing, robust effort going to find relevant SB1421 records.

Given how many months have gone by, we all should be asking ourselves a scary question.

What are they hiding?