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A 1996 state appellate ruling suggests it’s illegal for Alameda County leaders to make Sheriff Charles Plummer their interim probation chief. In People ex rel. Deputy Sheriffs’ Association v. County of Santa Clara, 49 Cal. App.4th 1471, Sixth District Court of Appeal justices ruled that a chief probation officer can’t run the jails — which is one of the duties of the sheriff. Combining the powers of a probation chief and sheriff creates many problems, the justices opined, including tipping the balance of power on the county parole board. By statute, the board must have representatives from the sheriff, probation department and the public. The Sixth District case is the latest concern raised by critics since Alameda County supervisors announced in late December they would make Plummer temporary head of the probation department. County leaders have said that it may take six months or more to find a permanent probation chief to replace Sylvia Johnson, who retires on Friday. Plummer will not get extra pay. In the Santa Clara case, Justice Eugene Premo, with Justice Franklin Elia and now-retired Presiding Justice Christopher Cottle concurring, wrote: “The offices are incompatible . . . The chief probation officer may not sit on the county board of parole commissioners in two capacities and he may not run institutions for the confinement of unsentenced adults.” And, the justices ruled, delegating duties to underlings does not solve the conflict problem. That court opinion troubles attorneys like Eva Paterson, who believe that the supervisors have, at the very least, crossed into murky legal territory. “It looks like this is something that is illegal,” said Paterson, who is executive director of the Lawyers’ Committee for Civil Rights in San Francisco. “But we understand that it is a legal and a political situation. We are reaching out to the supervisors before we move ahead with a legal action,” she added. Alameda County Counsel Richard Winnie, who’s drafting a plan to address what he called “crossovers,” said the Santa Clara case isn’t an obstacle. “It speaks to some of the issues that we are dealing with,” Winnie said, confirming that the Santa Clara case is one of the legal issues his staff has been analyzing. Although Alameda County doesn’t have a parole board — like the one in the Santa Clara case — he said the county has a similar body where the issue could come up. Generally, “it’s not an easy situation,” he said. “We are not just trying to walk the fine line of the law. We are trying to maintain the public trust.” At the very least, the Santa Clara case is a lesson in how a county decision can spur litigation that drags on for more than a decade. Santa Clara County Counsel Ann Ravel said she immediately thought of the local case when she heard that Alameda County was going to merge the sheriff and probation chief posts. In 1987, Santa Clara created a department of corrections to take over operation of the county jails from the sheriff. But because correctional officers can’t carry guns — and probation officers can — the county then tried to merge the jails with the probation department. The sheriff’s deputies union filed suit, and the Sixth District ruled the combination presented conflicts of interest. Now, the county uses sheriff’s deputies for some jail security. But the deputies’ association, which is dissatisfied with the two-tiered security scheme, has filed many suits against the county over the years, most recently in September 2002. Most have returned to the same request that spurred the appellate ruling: clarifying the role of sheriff’s deputies and correctional officers. Ravel said that although her county’s situation is unique, the court opinion could apply to Alameda County. Before the Santa Clara case came to light, Alameda County Presiding Judge Harry Sheppard said any legal conflict of interest issues “should be addressed.” The PJ declined to elaborate, but Winnie said he has been talking to Sheppard to address judges’ concerns. This week, Oakland civil rights attorney John Burris said the temporary appointment is rife with potential problems. “I hope that [the supervisors] looked at this closely, because it looks like a conflict of interest on its face,” Burris said Monday. Plummer has lobbied the county to transform the vacant North County jail into the county’s juvenile hall. Although many community leaders oppose that plan, Plummer would have a golden opportunity to push the proposal as probation chief, the lawyer said. The interim appointment could easily become set in stone if the supervisors grow accustomed to the money-saving plan, Burris said. He added that he has urged members of the legal community to challenge the appointment in court. “Does this serve the interests of the sheriff’s office in expanding control over budget and facilities rather than serve the interests of probation?” he asked. County Supervisor Gail Steele, who has been the most vocal supporter of Plummer, was exasperated by the criticism. “It is a temporary situation,” said Steele, who was a major critic of the outgoing probation chief and who penned a county charter amendment that gives supervisors more control over future chiefs. Steele, Winnie and the sheriff himself have pointed to Plummer’s skilled management of the sheriff’s office and offender rehabilitation programs, as well as his close working relationship with the probation office. “I just have a great deal of trust that nothing unjust or untoward will happen,” said Steele, who is president of the board of supervisors. Supervisor Scott Haggerty says that if a court case says the combined post is illegal, someone should bring that to the attention of the county counsel. However, Haggerty noted that many people, including some probation officers who he spoke with recently, are pleased that Plummer will be in charge. “The sheriff is a man of integrity,” the supervisor said. “A lot of people are excited over nothing.” Even if the Santa Clara case didn’t exist, “we would look at crossovers,” Winnie said. “We are working in a diligent manner because there is a high level of trust in Charlie Plummer.”

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