More than two years after county officials agreed to establish a civilian watchdog to audit how the Santa Clara County Sheriff’s Office runs the county jails and its police enforcement, the oversight plan still has yet to get off the ground.
That’s largely due to ongoing and unresolved closed-door negotiations over an agreement compelling the sheriff’s office to give access to investigatory and personnel information to the Office of Correction and Law Enforcement Monitoring, which is operated by the civilian OIR Group. In remarks offered to the county Board of Supervisors over the past few months, updates on the talks have used the terms “hopeful” and “optimistic” but also “impasse” and “step backward.”
But the exact hangup in the talks has not been publicly disclosed, with the involved parties all voicing wariness of revealing details that could derail the already-tenuous dialogue.
OIR co-founder Michael Gennaco contends the sheriff’s office has let the agreement languish unsigned since June, leaving his office unable to substantively audit key incidents. Those cases include a May shooting during the George Floyd protests in downtown San Jose when a deputy fired a handgun at a vehicle that allegedly hit two protesters, and inmate deaths recorded this year.
“This has been a challenge, and it continues to be,” Gennaco said. “We need information.”
That information includes documents like personnel files, internal investigations into inmate deaths, jail recordings and complaints — none of which OIR Group can access before the agreement has been signed.
As the stalemate languishes, Gennaco’s office could be bestowed some additional statutory authority from the state in the form of Assembly Bill 1185, which was signed by Gov. Gavin Newsom last month. The bill notably gives subpoena power to sheriff oversight bodies, but how that might apply in the future in Santa Clara County remains to be seen.
County Supervisor Joseph Simitian, who with current board President Cindy Chavez spearheaded the creation of the oversight role more than two years ago, shared in the frustration with getting the monitoring office working in earnest. Tuesday, the supervisors will take up a resolution “urging” that an agreement be reached by Nov. 3.
“Until and unless the sheriff agrees to make the documents available, the newly appointed civilian monitor will be significantly stymied in efforts to provide oversight,” Simitian said in an interview with this news organization. “Our monitor can’t make good policy recommendations or observations about how well the system is, or isn’t working, without a look inside, and that look inside isn’t allowed.”
County Counsel James Williams said information-sharing agreements between the monitor and other county agencies that interact with the sheriff’s office and jails, like custody health and his own office, have been reached, but affirmed that an agreement with the sheriff’s office itself has proven elusive. But he contends that walking a fine line between access and abiding by protections for police records has been a particular challenge in Santa Clara County.
“The ordinance that created OCLEM includes strong protections to ensure anything shared remains confidential, in part to help facilitate getting access to a broader range of materials,” Williams said, adding that he shares a sense of urgency with others involved: “We’re aware of the timing, and we’re aware of what’s going on. It’s going to have to get done.”
Late Monday afternoon, Sheriff Laurie Smith posted an update memo to Tuesday’s board agenda with a response to the proposed urgency resolution. In the memo, Smith attached a proposed agreement and suggested that Gennaco was overreaching.
“I suggest that the Board direct that the attached agreement be executed instead of OIR Group delaying the execution in order to seek access or information in this County that is routinely not included in the oversight of other California counties with an OCLEM-like model,” Smith wrote.
Smith further argued that OIR’s requests for “real-time access to all investigations and citizen complaints,” and “direct access to electronic databases” presented legal obstacles and unnecessary intrusions into her office’s work.
“I am concerned that this access will negatively affect the independent, constitutionally, and statutorily designated investigative functions of the Sheriff’s Office and/or obstruct my Office’s investigative functions, including distracting from or delaying investigations and/or interrupting Sheriff’s Office operations,” Smith wrote.
The sheriff’s office has been known to spar with other county agencies over records access. Last year, it clashed with the county administration over its level of control of criminal database information that stalled the implementation of a jail-management system, and later with the District Attorney’s Office on a separate issue of giving prosecutors access to jail-inmate call recordings.
Simitian pushed for civilian oversight over the sheriff’s office after the 2014 police shooting of Michael Brown in Ferguson, Missouri. That discussion got a significant momentum boost following the 2015 killing of Michael Tyree, a mentally ill Santa Clara County inmate whose beating death led to murder convictions for three jail deputies.
A board-appointed blue-ribbon commission recommended scores of jail reforms, which paralleled a class-action lawsuit filed by the Prison Law Office to shape up conditions in the county jails. One of the primary reform ideas was the establishment of civilian oversight.
The position was created in 2018, and the OIR firm was selected in fall 2019. Five years after Tyree’s death, four years after the blue-ribbon panel recommended oversight, two years after that oversight was created, and most recently after the national police-reform movement galvanized by the death of George Floyd, Simitian contends there is no more time to waste.
“I always worry at a time like this that the moment passes, people forget and the sense of urgency is no longer there,” he said.
In his more than 20 years auditing police and sheriff’s departments up and down the West coast — including departments in Palo Alto and Vallejo — Gennaco said he has never struggled to get basic departmental materials as he has in Santa Clara County.
The auditor welcomed Simitian’s Tuesday resolution but declined to share the details of several phone conversations with the sheriff’s office since late August, citing the need for privacy during negotiations. But if they fail to come to an agreement before Nov. 3, Gennaco plans to make those “sticking points” public through a report to the board.
“‘Til it’s over, it’s not over — and even then it’s not over,” Gennaco said. “But at some point, it’s important to bring the public and the board up to speed on where we are, or where we’re not.”