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Should Sheriff Pat Hedges stand down? 

The SLO County lawman is the subject of active county and state investigations into allegations of illegal bugging, but he's bucking requests that he take a leave of absence

The SLO County Board of Supervisors, county officials, and community members alike are pressuring SLO County Sheriff Pat Hedges--simultaneously the subject of an attorney general's investigation, a local county-ordered independent investigation, and a county administrative review, all centering on his admitted secret videotaping of his Chief Deputy Gary Hoving--to take a leave from his job.

click to enlarge ILLUSTRATION BY RUSS HODIN
  • ILLUSTRATION BY RUSS HODIN

# In a recent editorial, The Tribune echoed the call, calling his eavesdropping "woefully misguided at best and illegal at worst."

Hedges, however, said he sees no need to stand down.

"I think the county's confused, and I think The Tribune's confused," he said.

In an interview with New Times, the sheriff said he's capable of leading the sheriff's office despite the distractions of the inquiries. He said he didn't intentionally--he emphasizes that word--break any laws but isn't at liberty to discuss why he bugged Hoving's office, calling it an internal personnel matter.

"The department is doing fine," he said. "There hasn't been anything presented to me that would show the necessity for [taking a leave.]

"It would be foolish to think that the sheriff or any member of the department would go out and deliberately violate any law, and I think it's important to note that because of the confidentiality that surrounds employees in general and peace officers in particular, it really prevents a full disclosure of all of the circumstances at this time."

In a letter sent in late August, County Administrative Officer David Edge urged Hedges to take paid administrative leave until the county's human resources department completed an investigation into a $1.25-million claim filed by Hoving against the county, alleging that Hedges' actions created a hostile work environment. The claim is the first step before a lawsuit can be filed.

In the letter--the original was not retained, but New Times obtained a copy of a draft through a public records request--Edge said that the request that Hedges stand down came with the backing of the Board of Supervisors.

"Pat, I expect you're pretty frustrated right now," the letter read. "I can appreciate that and, like you, I want to resolve the issue as quickly as possible. Certainly I'm asking you to voluntarily remove yourself and [Undersheriff] Steve [Bolts] from the workplace because I, and the Supervisors, view it as being in the best interests of the county. But I also see it as in your individual best interest when you get that inevitable press call."

Bolts is Hedges' second in command, and is also named in the complaint as having allegedly cooperated with Hedges in setting up the videotaping. Bolts said he had no comment for this story.

The letter requested a response by Sept. 4, but none was received.

In an interview, Edge said that the letter and an earlier verbal request grew out of a closed-door meeting with the Board of Supervisors on the matter.

Edge emphasized that the request wasn't an attempt at prejudging or punishing Hedges, but rather a "by the book" response that is standard for all appointed county department heads who have serious complaints filed against them.

"It's a proper procedural thing," that he take leave, said Supervisor Harry Ovitt. Supervisor Bruce Gibson said he would let the letter speak for itself.

Hedges was elected in 2006 in a race against retired SLO City Police Chief Jim Gardiner--who stopped actively campaigning months before the actual election.

Gardiner was cautious in his comments about Hedges' situation, saying only, "I'm certainly disappointed that the situation has come up, and I'll be very interested to see what the attorney general does with it."

Elected, not appointed

Because he's an elected official, Hedges can't be forced to take a leave, but numerous law enforcement experts said that if he were in an unelected position, he would automatically be placed on administrative leave pending the outcome.

Indeed, history supports that account

When Atascadero police cited another Sheriff's chief deputy, David Albrecht, early this year on suspicion of stealing groceries, he was promptly placed on paid administrative leave. Hedges said that case isn't analogous to his.

A year ago, when a SLO City Police employee was suspected of leaking police information about drug-related search warrants, she was promptly placed on paid administrative leave.

When the SLO County district attorney launched an investigation into allegations against Atascadero's then-Police Chief Dennis Hegwood--later discounted--he was placed on administrative leave. The position is not an elected one.

Those actions aren't simply a good government reflex, experts say. Law enforcement officials are held to specific legal expectations.

A 1995 U.S. Supreme Court decision that expanded on an earlier case, Brady vs. Maryland, demands that law enforcement employees be in a position to render credible testimony in court. In practice, it means that prosecutors have to be in a position to turn over to criminal defendants any information that might put in question an officer's honesty, integrity, or moral standing. At the extreme, some prosecutors have refused to even take cases involving police officers who have continued to work while they were under a cloud.

Deputy District Attorney Stephen Brown said that the Brady law applies specifically to cases where an officer is a material witness in a case, and only after an investigation is concluded.

Hedges said the decision isn't relevant to his case.

"That has to do with providing information that has been found to be not factual," he said. "There's no correlation between the Brady law and any personnel issues that we have going on."

But Brown and others said that another court ruling--a federal decision called the Rattray decision--could apply in Hedges' case, depending on how the facts ultimately shake out.

That decision held that eavesdropping by police--separate from that conducted during in a criminal investigation--isn't exempt from a 1968 state law and is illegal.

"If you tried to lay Rattray over this situation," Brown said, "an argument could be made that what the sheriff did was inappropriate."

Options

Even if, as an elected official, Hedges can't be forced to take a leave--or, for that matter, be fired by county officials--that doesn't mean the Board of Supervisors or others wouldn't have options for disciplining him if they find cause to and choose to. Among the options, suggested by numerous elected and unelected local officials:

The supervisors could issue a public censure.

The county's sitting civil grand jury could launch a specific proceeding aimed at removing a public official from office. Brown said he doesn't recall the procedure being used in his quarter century of experience, but the process would require that the grand jury find "willful or corrupt misconduct in office," and ask for a D.A. trial that would operate like a criminal proceeding but result only in removal of an official from office.

The Board of Supervisors could seek to starve Hedges' office of funds. Although the board members likely couldn't cut Hedges' pay directly out of constitutional concerns, they could possibly do so for Bolts, Edge said.

Similarly, the board could strip Hedges' office of certain responsibilities, although not those charged directly to his elected position as sheriff and coroner.

Members of the public could initiate a recall process against Hedges. That process would require the valid signatures of 10 percent of the county's more than 155,000 registered voters to put the matter to a vote.

Past comparisons

It wouldn't be the first time the county has faced questions about how to discipline an elected officer. In 1990, San Luis Obispo auditor Paul Floyd was accused by six women in his office of sexual harassment that included repeatedly grabbing, touching, and pinching them and making lewd comments.

A civil service hearing into the allegations became a media spectacle. The panel eventually found Floyd at fault and recommended that he resign. He refused, and because he was elected, he couldn't be fired outright.

The county settled the matter out of court, paying $300,000 to the women, but the Board of Supervisors did more. The board, for example, voted to move his official office to little more than a cubbyhole. They also stripped him of his staff and assigned most of his duties to others. They couldn't cut his pay, but the current Auditor and Controller Gere Sibbach, who worked under Floyd at the time and took his job in the subsequent election, said they did everything short of that.

While Sibbach said he was no fan of Floyd's, he's not convinced that all of the board's actions--particularly those that directly denied him of his abilities to perform functions related to what he was elected to do--would have held up to close court scrutiny if Floyd had appealed them.

"My view is that they were probably out on a limb that could have been easily sawed off," he said.

The investigations

There are three known investigations currently involving Hedges.

The California Attorney General's office, at the request of the county District Attorney's office, is leading an investigation into the eavesdropping matter and additional allegations that were made to the office anonymously, according to California Department of Justice spokesman Gareth Lacy.

Lacy declined to discuss the scope of the investigation, but called it "an open, active investigation" that will include interviews with people involved and reviews of all relevant documents. If a criminal case were to be brought, he said, it would end up in a local court but with the Attorney General's office taking the lead in place of attorneys from the D.A.

The County Counsel's office has hired an outside investigator to lead an investigation into Hedges as well. Hedges said he believes that inquiry oversteps the county's jurisdiction, and he's displeased at how it's been handled.

"If they want to conduct an investigation into alleged misconduct, then they are in an area where they do not have that authority," he said.

Specifically, Hedges said he's upset that his employees have been sent letters telling them they're required to cooperate and, in his words, "their failure to cooperate can or will lead to discipline up to and including termination."

In an attempt to answer Hoving's original claim, the county's risk management office is investigating the matter as well. Hedges said he doesn't question the county's authority to conduct that inquiry.

The law itself seems clear on its face. Under state law, it's illegal to listen in on or record a conversation without the consent of those involved. A first offense is a misdemeanor, punishable by a fine of up to $2,500 and up to a year in jail.

There are exemptions--and a recording made in the course of a criminal investigation is one--but nobody, including Hedges, has described the eavesdropping of Hoving as a part of a criminal investigation.

Constitutional complications

The constitutional questions that prevent the county from ordering Hedges to stand down have also complicated the process itself. In the normal course of things, Edge said, an employee in Hoving's position would still be at work while the subject of the accusations--Hedges--would be on leave.

Instead, since Hedges declined, county human resources officials opted to put Hoving out on leave in the interest of keeping the office functioning.

But the county isn't paying for all of Hedge's legal bills. A judge recently turned back Hedge's request that the county be required to. The judge said the county would likely have to pay to defend Hedges in some instances, but not others.

Hedges is upset about that decision, saying: "Our position is they have a duty and responsibility to provide the sheriff with competent counsel for anything that the sheriff does within the course and scope of his duties."

Hoving's attorney, Michael P. Stone, said in a statement that any lawsuit is likely to seek far more compensation than the $1.25 million mentioned in the claim to the county, in part because it will likely be difficult for Hoving to return to his job or find another.

He said his client would "in my opinion, be nuts" to return to work at "that snakepit."

Stone, who also teaches constitutional law classes, said Hedges' taping was so far over the line, his students wouldn't even question the notion.

"It's sort of like this: If I were to lay out the facts of this case in a 'hypothetical' to them and ask them if they think it is (1) legal, or (2) a good idea, the response would be 'Well, no-duh!'"

Repercussions

Already, the cloud over Hedges is causing some troubles. At an Oct. 2 Board of Supervisors meeting--Hedges was attending for another matter--supervisors publicly scrapped a "strategic planning session" they had sought with Hedges, the D.A.'s office, and Probation for the following week to discuss a variety of law enforcement and crime-related issues.

Edge said "various distractions" in the news led to the cancellation.

Ovitt and Gibson were more specific. Both said that the investigation into Hedges led to the cancellation. The investigation, in Ovitt's words, made it "unlikely that that meeting would be productive."

Contact Managing Editor Patrick Howe at phowe@newtimesslo.com.

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