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Under mounting pressure from the legal community, Alameda County’s Board of Supervisors abruptly decided to make the assistant sheriff — rather than the sheriff — interim probation chief. But critics aren’t appeased: A juvenile court judge has issued an order barring any sheriff’s officer from running juvenile court facilities, and some lawyers say they fear the county is simply making an end-run around state conflict-of-interest laws. In a closed session Tuesday, supervisors backed off from their initial decision to put Sheriff Charles Plummer at the helm of the probation department because the elected sheriff risked losing his office if critics initiated a special legal challenge. Instead, Assistant Sheriff Wayne Tucker will leave his law enforcement job temporarily to head the probation department while supervisors search for a permanent department head. The supervisors’ move followed a tide of criticism that began when they made Plummer interim probation chief in December. They wanted him to head both offices for six months — the amount of time the county said it needed to replace retiring Chief Probation Officer Sylvia Johnson. Johnson’s last day is Friday. If Tucker takes the probation department’s reins, that agency will pay him the same amount of money that he was paid by the sheriff, roughly $160,000 annually, Plummer said. The sheriff would act as a “special adviser” and make reports to supervisors about Tucker’s progress, the budget and other issues. Tucker, however, wouldn’t report to the sheriff, Plummer said. But on Wednesday juvenile court Presiding Judge Brenda Harbin-Forte issued a temporary order banning Tucker, Plummer or any sheriff’s officer from setting foot inside juvenile hall — or any other county juvenile facility — if they intend to operate it. They also can’t access juvenile court records until she sees proof that Tucker has terminated his employment with the sheriff’s department. “There is no statutory, constitutional, case or other authority permitting” sheriff officials to oversee the operation of juvenile facilities, Harbin-Forte wrote in Wednesday’s order. According to California case law, a sheriff’s deputy and the sheriff are essentially the same person, she wrote. The penal code says that the sheriff can’t run the juvenile hall, she added, and putting juvenile programs — which are run by the probation department — under the sheriff puts them “at risk.” Plus, giving the sheriff access to juvenile court records violates children’s rights, she wrote. “This is based on erroneous conclusions,” said County Counsel Richard Winnie, adding that the issues the order raises were addressed by the supervisors already. “We need to move on.” Some details of the arrangement made Tuesday are still unclear: Winnie said Tucker will resign from the sheriff’s office to take the probation post; Plummer and Supervisor Gail Steele said Tucker will take a leave of absence. “It was me who made the decision,” Plummer said, adding that someone could have mounted a quo warranto legal challenge that could have removed him from office. “I don’t need this. I told [the supervisors] that we will do something else.” While Plummer and Winnie stressed that they reached an independent conclusion, they both took shots at their critics. “I am not angry,” Plummer said, but added, “I think that lawyers have better things to do with their time.” Plummer said as a Berkeley cop he worked in the Juvenile Bureau for three years. As a former Hayward police chief he started a Youth and Families Bureau and hired six clinical psychologists to work there. He’s done more to rehabilitate offenders than most sheriffs, Plummer said. “I know a hell of a lot more about how to treat children than judges,” he said. Winnie called legal critics “almost hysterical.” But, Winnie added, the sheriff would have had to be too focused on eliminating any appearance of conflict if he took the probation job. “There were enough crossovers that it was clear that the sheriff would have had to deal with those crossovers and firewalls all the time,” he said. And although the quo warranto risk was small, Winnie said, the “consequence was huge.” Tucker’s plans for the beleaguered probation department are similar to the plans Plummer had, the sheriff said, adding, “Tucker has worked under me for 16 years. He will do pretty much what I would do.” Tucker declined to comment, adding that he will talk publicly after he assumes office at the end of the week. The Recorder reported in December that Presiding Judge Harry Sheppard thought the interim appointment plan raised a legal conflict of interest issue that “should be addressed.” Later, Oakland civil rights attorney John Burris and Eva Paterson, the executive director of the Lawyers’ Committee for Civil Rights, said Plummer’s appointment could be illegal. Specifically, they pointed to a 1996 case, People ex rel. Deputy Sheriffs’ Association v. County of Santa Clara, 49 Cal.App.4th 1471, that barred the probation chief from running the jails — one of the sheriff’s powers. The Sixth District Court of Appeal also ruled that joining sheriff’s and probation duties upset the balance of power on the Santa Clara County parole board. Winnie said that Alameda County had a similar body where that might have been an issue. Burris and others noted that the temporary appointment could set the stage for power abuse: The post would give the sheriff access to documents, such as juvenile records, that he wouldn’t normally see. Also, the sheriff could advocate moving the juvenile hall to the vacant North County jail, a proposal that has been criticized by some local leaders. On Wednesday, Burris and Paterson said it’s unclear whether the new appointment clears up any of the initial legal problems. Sheppard said he was aware that the “situation altered a little bit,” but didn’t know details about the supervisors’ decision. “I am glad that cooler heads prevailed,” Burris said. However, unless Tucker “divorces” himself from the sheriff’s department while he leads probation, legal problems may remain, he said. Burris noted that the sheriff will still play an active advisory role. “It seems like a change of style rather than a change of substance,” he said. “You can always wonder about [Tucker's] loyalties.” Paterson of the lawyers’ committee said simply, “We are still investigating.”

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