Orange County Counsel Leon Page warned Tuesday that Supervisor Todd Spitzer's letter asking federal prosecutors to take over the District Attorney's Office has enhanced the potential for a federal lawsuit against the county.
Spitzer's letter, which was sent Monday to U.S. Attorney General Jeff Sessions, "increases the likelihood that a civil rights action will be taken against the county," Page told the Board of Supervisors as he urged the panel to meet in closed session to discuss the anticipated litigation.
Spitzer defended his letter, arguing that he didn't reveal anything that wasn't already a matter of public record. But other supervisors seized on Spitzer's assertion that there is no other alternative but to have the Justice
Department take over the Orange County District Attorney's Office, which has been buffeted by a series of scandals, chief among them being the way jailhouse informants were used to violate the constitutional rights of inmates.
"The question presented is whether this letter presents a significant exposure to liability, and in my judgment it does, and for that reason the board can choose to review this in closed session," Page said.
Spitzer criticized his colleagues for what he argued was inaction despite waves of allegations about corruption in the D.A.'s office.
Spitzer said he would have raised the issue of the series of allegations earlier, "but I was waiting to see what the District Attorney would say on '60 Minutes.'" The CBS news show aired an in-depth report on the subject Sunday night.
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"We are not a law enforcement agency. None of us are sworn peace officers," Spitzer said. "But if I believe crimes are being alleged by a sworn peace officer — like, for example, Craig Hunter, the chief investigator of the District Attorney's Office — that felonies are being committed, it is incumbent upon us to put that forth because (the Justice Department) is already here investigating."
Under the Obama administration, Justice Department officials announced a civil probe of the allegations of misconduct in the use of jailhouse informants. UC Irvine Law School Dean Erwin Chemerinsky, who pushed for such a probe, said he was pessimistic, however, that Sessions would continue it based on comments he has made about such investigations.
Board Chairwoman Michelle Steel said the Hunter allegations had to be first considered by the Human Resources Department, which is why his claim has not been a matter of discussion among the board so far.
"We cannot put everything on our closed-session agenda," Steel said.
Supervisor Shawn Nelson ridiculed Spitzer's call for a consent decree, noting that such an arrangement is a negotiated result for the settling of a lawsuit, not something federal prosecutors do unilaterally.
"They don't even do this kind of thing," Nelson said. "It's kind of ridiculous... They don't do that ever. That doesn't happen. The U.S. Attorney's Office pursues federal crimes in federal courts. We have an Attorney General for that... There's zero percent chance of it happening. They don't prosecute local cases. They never have."
Supervisor Andrew Do noted how he and Spitzer as a task force worked hard to establish an Office of Independent Review in the wake of the so-called snitch scandal so the county could avoid a federal civil rights lawsuit.
"It's ironic to me that when we went through the long process of deliberating on the Office of Independent Review that we didn't want the federal government to come into our county," Do said. "We didn't want a consent decree and we worked really hard to try to show transparency, and that was the reason it was offered. And, yet, we now have a letter from a member of this board inviting such a thing to happen, so it seems to defeat everything that we have been working toward up to now."
Do also noted that the snitch-scandal allegations are still being litigated. Tuesday morning, a third round of evidentiary hearings began in the case against Scott Dekraai, the worst mass killer in the county's history, that spawned the allegations regarding the use of informants.
Hunter's claim was filed this month with the county, Do noted.
"You're asking us to act on these allegations and it's premature," Do said.
Spitzer fired back that he raised the same issues of alleged corruption in Hunter's claim as far back as two years ago and it fell on deaf ears.
"One of the chief complaints about former county executive Carlos Bustamante, who was convicted of sexually assaulting staffers, was that county officials were made aware of the allegations and were slow to address them, Spitzer said.
In the past, Spitzer said, the county would swiftly move to hire outside counsel to investigate the claims, which hasn't been done, despite an appellate court ruling saying there has been "systemic" abuses of constitutional rights of inmates in the jails due to the informant program.
"I'm not about, as an elected official, to have allegations of felonious conduct and do nothing," Spitzer said. "(Former Sheriff) Mike Carona was involved in felonious conduct for years and no one did anything... When this comes to our attention, we must take action immediately."