# REDACTED

1 Filed 6/ 29 /22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

MARK ESSICK,

Plaintiff and Appellant

,

v. COUNTY OF SONOMA et al.,

Defendants and Respondents

. A 162887

(Sonoma County Super. Ct. No. SCV

- 267581)

Following the submission to the County of Sonoma (the County) of a
harassment complaint against Mark Essick, the elected sheriff of the County,
an independent investigator, Ms. Amy Oppenheimer, conducted an inquiry
and prepared a written report. A local n ewspaper requested that the County
release the complaint, the report, and various related documents (collectively,
the Oppenheimer Report) pursuant to the California Public Records Act
(CPRA) (Gov. Code, § 6250 et seq.). Sheriff Essick objected to the Cou nty’s
release of the Oppenheimer Report. In this “reverse” CPRA action, the trial
court denied his request for a preliminary injunction barring the
Oppenheimer Report’s release.
Sheriff Essick appeals, contending the trial court erred because (1) the
Oppe nheimer Report should be classified as confidential under an exemption

to the CPRA (Gov. Code, § 6254, subd. (k)), either as a “peace officer [ ]”
“personnel record [ ]” (Pen. Code, §§ 832.7 , subd. (a), 832.8, subd. (a)) or

because it constitutes a “report [ ] o r findings” relating to a complaint by a

# REDACTED

2 member of the public against a peace officer (Pen. Code, §§ 832.5 , subd. (b),

832.7, subd. (a)); and (2) the County should be estopped to release the
Oppenheimer Report because it promised him that, in conducting its
investigation, it would abide by Government Code section 3300 et seq. (the
Public Safety Officers Procedural Bill of Rights Act) (POBRA), and it

therefore should be bound to ke ep the results of the investigation

confidential. 1 We disagree on both points and will affirm.

I. BACKGROUND 2
In August 2020, while a large and complex set of wildfires swept
through portions of Sonoma County in close proximity to many homes , Sheriff

Essic k met with the County Board of Supervisors, fire officials, and members
of the public in a streamed town hall meeting. During the meeting, Sheriff
Essick provided updates on an evacuation strategy and fielded questions
from the public. When asked a quest ion concerning whether evacuated
residents might be permitted to reenter mandatory evacuation zones to feed
pets and animals left behind, Sheriff Essick refused to grant such permission,
citing safety concerns.
Following the meeting, Sheriff Essick exchang ed text messages with
Lynda Hopkins, an elected member of the Sonoma County Board of
Supervisors. Supervisor Hopkins started the exchange, asserting her belief

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXX Sherif f Essick

1 See Pitchess v. Superior Court (1974) 11 Cal.3d 531

.

2 We have concurrently filed public (redacted) and sealed (unredacted) versions of this opinion. We hereby order the unredacted version sealed until
30 days from the date this opinion is filed

. Both the redacted and unredacted versions shall be provided to the parties. Omissions in the public (redacted) version are shown by greyed out portions of the language in the opinion.

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3 replied XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX X XXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX X X XX
He also left a text telling Super visor Hopkins XXXXXXXXXXXXXXXXXX

XXXXXXXXXX
In a later phone conversation between Supervisor Hopkins and Sheriff

Essick, XXXXXXXXXXXXXXXXXXXX According to Supervisor Hopki ns XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX X XX

XX X Sher iff Essick’s recollection of the conversa tion differed. In his version
of what happened, Supervisor Hopkins XXX XXXXXXXXXXXXXXXX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX X XX

XXXXXX Sheriff Essick claims XXXXXXXX XXXXXXXXXXXXXX X XX

XXXXXX XXXXXXX XXXXXXXX XXX X XX He denies XXXXXX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX X XX

XXX X XX
Immediately after the phone call, Supervisor Hopkins lodged a complaint against Sheriff Essick with the Sonoma County Administrator,
Sheryl Bratto n, alleging X X XXX X XX

. 3 Ms. Bratton forwarded the complaint

3 Under section 2

- 8 of the Sonoma Coun ty Code, the duties of the County Administrator are described as follows: “Supervise, direct and coordinate the administration of all county offices, departments and

# REDACTED

4 to the County Human Resources Director, Christina Cramer, who conducted
an intake interview of Supervisor Hopkins. In September 2020, County
Administrator Bratton, County Human Resources Directo r Cramer, County
Counsel Robert Pittman, and Susan Gorin, the chair of the Sonoma County
Board of Supervisors, jointly retained the Law Offices of Amy Oppenheimer

, a private law firm, to conduct an impartial investigation of XXXXX X XX

XXXXXXXXXXX X XX After collecting and analyzing the facts,

Ms. Oppenheimer found XXXXXXXXXXXXXX XX XXXX X XX that XX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX X XX

XXXXXXXXXXXXX XXX XXXX X XX But the findings also concluded that

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXX XX XX

On December 16, 2020, the Board of Supervisors, in a letter over Chair
Gorin’s signature, gave Sheriff Essick “Formal Notice of Outcome of
Investigation,” which stated XXX XXXXXXXXXXXXXXXX X X X XX

XXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXX X XX

XXXXX X XX 4 More specifically, the letter XXXXXXXXXXXXXXXX X XX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX X XX

XXXXXXXXXXXXXXXXXX XXXXXXXXX XX The letter stated XXXXXX X XX

XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX X XX

XXXXXXXXXXXXXX X XX

institutions, and the official conduct of all county officers .

. . as to all matters

ove r which the board of supervisors has responsibility and control.”

4 We grant Sheriff Essick’s unopposed request that we take judicial notice of the County’s “Formal Notice of Outcome of Investigation,” which was not included in the trial court record. (Ev id. Code, §§ 452, subd. (c) , 459.) We assume without deciding that the records of county entities fall within the purview of Evidence Code section 452, subdivision (c).

# REDACTED

5 Before the Board of Supervisors sent its XXXXXXX X XX to Sheriff

Essick, the Press Democrat, a local newspaper, submitted a request under
the CPRA seeking disclosure of the final investigative report. The day the

Board sent its XXXXXXX X XX County Counsel Pittman informed Sheriff
Essick the Board had received the Press Democrat’s CPRA request and
intended to release the documents we refer to here as the Oppenheimer
Report (i.e., the original complaint, the formal notice containing the outcome
of the investigation, the c onfidential e xecutive s ummary of i nvestigative

r eport, and a redacted copy of the c onfidential i nvestigative r eport authored
by Ms. Oppenheimer). Diane Aqui, Sheriff Essick’s counsel, responded to

Mr. Pittman asserting the requ ested documents are personnel records and
investigative reports of a peace officer that are protected from disclosure

under Penal Code section 832.7. Mr. Pittman wrote back, expressing his
disagreement with Ms. Aqui’s interpretation of the Penal Code and informing

her the Board intended to release the records to the Press Democrat on

December 24, 2020.

On December 21, 2020, Sheriff Essick filed a complaint for declaratory
and injunctive relief against the County of Sonoma requesting the trial court

bar the release of the Oppenheimer Report to the Press Democrat. In the
complaint, Sheriff Essick requested a temporary restraining order and a
preliminary injunction to keep the Oppenheimer Report closed to the public
for the duration of the trial proceedings. The trial court issued the requested
temporary restraining order and set a hearing for March 2021 . But on
May 19 , 2021, the trial court entered a minute order denying the preliminary
injunction, ruling there was no evidence to show the investigative reco rds
should be classified as “personnel records” (Pen. Code, § 832.7, subd. (a)) that

# REDACTED

6 are protected from public release. The court entered a written order on

June 7, 2021, denying the preliminary injunction.
Sheriff Essick appealed. We granted a temporary stay of the trial

court’s order on June 24, 2021, prohibiting the County from releasing the
Oppenheimer Report until further notice. On July 30, 2021, we granted
Sheriff Essick’s petition for a writ of supersedeas, ruling that, pending the

resolution of this appeal, the County may not release the subject records until

further notice. The parties subsequently filed their briefs on the merits of
this appeal. 5

II. DISCUSSION

A. Statutory Landscape

Enacted in 1968 and modeled on the federal Freedom of Information
Act (5 U.S.C. § 552 et seq.), the CPRA “grants public access to public records

5 After the parties filed their briefs on the merits of the appeal, the County filed a motion to strike, asking this court to either (a) strike certain portions of Sheriff Essick’ s reply brief that allegedly contain improper new arguments, (b) disregard the challenged portions of the reply brief, or (c) accept a surreply brief responding to the allegedly improper arguments. Sheriff Essick filed an opposition to the motion to strike. Sheriff Essick also filed a motion for leave to file a “sur surreply brie f ” in the event this court accepts the County’s surreply. As to the County’s motion to strike, we will not address point by point the parties’ detailed contentions in their motion papers as to whether particular arguments made in Sheriff Essick’s reply brief are improper. Suffice it to say that, in addressing the merits of this appeal, we have considered only those arguments in Sheriff Essick’s reply brief that we view as proper rebuttal (and to the extent we may have considered any arguments the County believes to be improper, the County has suffered no prejudice, as we are ruling in its f avor on the merits of the appeal). We deny the remaining relief requested by the County in its motion

— we will not strike portions of Sheriff Essick’s reply brief, and we will not accept the County’s proposed surreply. Finally, we deny as moot Sheriff Ess ick’s motion for leave to file a “sur surreply” that responds to the proposed surreply.

# REDACTED

7 held by state and local agencies. [Citation.]

. . . ‘ [It] was enacted for the
purpose of increasing freedom of information by giving members of the public

access to records in the possession of state and local agencies. [Citation.]
Such “access to information concerning the conduct of the people ’ s business, ”

the Legislature declared, “ is a fundamental and necessary right of every
person in this state.” ’ [Citation. ]” ( Becerra v. Superior Court (2020)

44 Cal.App.5th 897, 913 ( Becerra ).)
Consistent with its basic design favoring disclosure, the CPRA broadly

defines “ ‘[p]ublic records ’ ” as including “any writing containing information
relating to the conduct of the public ’ s business prepared, owned, used, or
retained by any state or local agency

. . . . ” ( Gov

. Cod e, § 6252, subd. (e).)

Th is expansive framing of the statutory right of access

— a right that is
ultimately rooted in our state Constitution (Cal. Const., art. I , § 3,

subd. (b)(2) )

— is fundamental to our approach to construing the statutory

scheme as a whole. ( Becerra

, supra , 44 Cal.App.5th at p. 913 [“ CPRA must

be ‘ broadly construed’ because its statutory scheme ‘furthers the people ’ s right of access’ ”] .) To be sure, “the [ A ] ct does not confer an absolute right of

access

. ” ( Ibid .) In passing the CPRA

, the Legislature declared it was

“ ‘ mindful of the right of individuals to privacy. ’ ” ( Becerra

, at p. 913, quoting

Gov. Code

, § 6250.)
The CPRA balances the dual concerns for privacy and disclosure by
providing for various exemptions that permit public agencies to refuse
disclosure of certain public records. (Gov. Code, §§ 6254

– 6255.) “ In 2004,

California ’ s voters passed an initiative m easure that added to the state
Constitution a provision directing the courts to broadly construe statutes that
grant public access to government information and to narrowly construe

statutes that limit such access. (Cal. Const., art. I, § 3, subd. (b)(2 ). ) ” ( Long

# REDACTED

8 Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 68
( City of Long Beach ).) Applying these constitutionally grounded principles of
construction in a case involving a peace officer’s personnel file, our Supreme

Court held in 2014 that article I, section 3, subdivision (b)(2) of the California

Constitution “ does not affect the construction of any statute ‘ to the extent

. . . it protects [the] right to privacy, including any statutory procedures
governing discovery or di sclosure of information concerning the official
performance or professional qualifications of a peace officer. ’ ( Cal. Const.,

art. I, § 3, subd. (b)(3).) ” ( City of Long Beach

, supra , at p. 68.) But the
balance struck by the Legislature still favors disclosure in cases involving
peace officer records and all other kinds of records

. That is because t he party
opposing disclosure under any CPRA exemption always bears the burden of
proving the exemption applies ( City of Long Beach , at p. 70; Count y of Los
Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 63

– 64 )

, which means

that , on the facts, doubtful cases must always be resolved in favor of

disclosure.
Among the exemptions recognized within the CPRA scheme is the
umbrella protection of Government Code section 6254, subdivision (k). That
provision protects “[r]ecords, the disclosure of which is exempted or
prohibited pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.” (Gov. Code, § 6254

, subd. (k) .) Succinctly put, Government Code section 6254, subdivision (k)

“ ‘incorporates other [disclosure] prohibitions established by law.’ ” ( Copley
Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 128 3 ( Copley Press )

, quoting CBS, Inc. v. Block (1986) 42 Cal.3d 646, 656 ; City of Long Beach

,

supra , 59 Cal.4th at p. 6 7 .) Thus, to mark out the precise reach of
exemptions available under Government Code section 6254, subdivision (k),

# REDACTED

9 we must look beyond the CPRA itself, to privileges and confidentiality
protections defined elsewhere in the law.
Here, Sheriff Essick relies primar ily on section s 8 3 2

. 7 and 8 3 2

. 8 of the

Penal Code

. T hese two provisions are found within the statutory scheme

known as the Pitchess statutes. (Pen. Cod e, § § 832.5 , 832.7, 832.8.) Read
together, Penal Code s ections 832.7 and 832.8 protect as “confidential” the
“personnel records of peace officers” and “information obtained from these

records.” (Pen. Cod e, § 832.7, subd. (a).) “ Personnel records” means any thing

in a file maintained under th e officer’s name “ by his or her employing agency ”
( Pen. Code

, § 832.8, subd. (a) ) that relate s to a variety of subjects in which an

officer may have a privacy interest, including, as pertinent here, the officer’s

“ advancement, appraisal, or discipline” ( i d

., subd. (a)(4)) or “ [c]omplaints, or
investigations of complaints ” concerning the performance of his or her duty
( id. , subd. (a )(5) ; s ee City of Long Beach

, supra , 59 Cal.4th at p. 68)

. Though
it is not his principal focus, Sheriff Essick relies as well on Penal Code section

832.5, which

— by cross

- reference (Pen. Cod e , § 8 32 .7, subd. (a) )

— extends
overlapping confidentiality protection to records relating to investigations of

certain citizen complaints against peace officers “ in the possession of the

[ officer’s employing ] department or agency

. ” (Pen. Cod e, § 832. 5 , subd. (b) ;

see id ., subd. (a)(1) .) 6

6 F ollowing the enactment of certain amendments in 2019, the Pitchess statutes “ deem [ ] as nonconfidential

— and subject to public inspection pursuant to the CPRA

— all records maintained by a state agency relating to reports, investigations, or findings from incidents involving an officer ’ s discharge of a weapon; an officer ’ s use of deadly force or force resulting in great bodily injury; and incidents involving a sustained finding of a sexual assault or dishonesty by an officer. ( [Pen. Code,] § 832.7 [ , subd. ] (b)(1) (A)

– (C).)” (

Becerra

, supra , 44 Cal.App.5th at p. 918.) As a broad descriptor for complaints that are not subject to disclosure under Penal Code

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10 B. The County of Sonoma I s Not Sheriff Essick’s “Employing Agency”
According to Sheriff Essick

, “The ultimate question in this appeal is

whether the records sought to be disclosed are ‘ personnel records ’ within the
meaning of Penal Code § 832.8 .” In a closely related line of argument, Sheriff

Essick contends that even if the records at issue here ar e not “ ‘personnel

records’ ” as defined by Penal Code section 832.8, they are confidential files
relating to the investigation of a “complaint [ ] by [a] member [ ] of the public”
against a peace officer under Penal Code section 832.5. Both strands of the

ar gument fail for the same reason: To support the “ ‘personnel records’ ”

version of th e argument under Penal Code section 832.8 and the citizen
complaint version of the argument under Penal Code section 832.5

, Sheriff

Essick must demonstrate t hat the County is his employer. We conclude he

has not met that burden.
That the County has chosen to pay its elected officials is immaterial to

its relationship to Sheriff Essick. (Sonoma County Code, § 21

- 5 [“The

unclassified service shall consist of : [¶] (a) All officers elected by the people”];
see generally Sonoma County Code, c h. 21 [“unclassified service” includes
those over whom Civil Service Commission lacks authority].) The county

s heriff is a public official elected by Sonoma County voters, an d as such, is
ultimately responsible to th em

— not to the Board of Supervisors or anyone

section 832.7, subdivision (b)(1)(A )

– (C), Sheriff Essick uses the term “non

serious” complaints. We agree that Supervisor Hopkins’s complaint and the finding relating to it were not per se disclosable under Penal Code section 832.7, subd ivision (b)(1)(A)

– (C) , but t o the extent that, implicitly, Sheriff Essick suggests her complaint was “non

- serious”

— in a colloquial sense, since that phrase appears nowhere in the statut e

— we do not endorse the language he uses to describe the operation of the 2019 amendments to the Pitchess
statutes.

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11 else in county government

. (Cal. Const., art. XI, § 1, subd. (b) [requiring
elected sheriff].) 7 Not only does the Board of Supervisors lack power to hire
the county s heriff, it lacks power to fire the person in that office as well. The
Board of Supervisors , acting on behalf of the County, has no power to appoint

or terminate the sheriff

. (Gov. Code, § 24205 [requiring elected sheriff even
in charter counties].)

Nor d oes the Board of Supervisors have disciplinary power over the
county sheriff. In commissioning the Oppenheimer Report , the Board of
Supervisors was fulfilling its “statutory duty to supervise the conduct of all
county officers.” ( Dibb v. County of San Di ego (1994) 8 Cal.4th 1200, 1210,
citing Gov. Code, § 25303 [creating that duty].) Contrary to Sheriff Essick’s
argument, Government Code section 25303 does not create an employer

employee relationship between the Board of Supervisors and the c ounty

sherif f. Rather, a county board has “oversight responsibility” as to an elected
sheriff but lacks power to direct how he or she performs official duties. ( Dibb

,

supra , 8 Cal.4th at pp. 1209

– 1210; cf. S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350 [ in applying the
multiple criteria that determine the existence of an employment relationship
for purposes of worker’s compensation, “ ‘ [t]he principal test of an
employment relationship is whether the person to whom service is rendered
has the right to control the manner and means of accomplishing the result

desired

. . . .’ ”].)
The Board of Supervisors did, to be sure, issue XXXXXXXXXXX X XX

XXXXXX X XX but not every statement of XXXXX X XX is a “written

7 It matters not that the County Administrator and County Counsel Pittman were also involved in the retention of Ms. Oppenheimer to carry ou t the investigation; in doing so, they were acting as adjuncts to the Board of Supervisors.

# REDACTED

12 reprimand” constituting “punitive action” within the meaning of POBRA.
The Board of Supervisors’ XXXXX X X X XX could only be a “reprimand” if the
Board of Supervisors were Sheriff Essick’s employer. “Reprimands” must

have employer

- driven con sequences

— affecting promotion, advancement, or
pay, and potentially leading to discharge. Written reprimands of peace
officers are “punitive actions” only because they “ ‘may lead to the adverse

consequences .

. . at some future time ’ ” by the department issuing the
reprimand

. ( Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 317

[ italics added by Otto v. Los Angeles Unified School Dist. (2001)

89 Cal.App.4th 985, 996]; see Gordon v. Horsley (2001) 86 Cal.App.4th 336,
348 [written reprimand “puni tive action” because it would “almost certainly
have an impact on his future opportunities for advancement in the sherif f ’s
department”]; Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209,
1222 [citizens review board’s non

- disciplinary finding of mi sconduct “punitive
action” because it would “be considered in future personnel decisions affecting
[the] deputies and may lead to punitive action”]; Hopson v. City of Los
Angeles (1983) 139 Cal.App.3d 347, 353 [police commission’s report was
“punitive acti on” because of “its potential impact on the [officers’] career
opportunities”].) Sheriff Essick faces no such consequences here. 8
We are not persuaded that the Oppenheimer R eport is “discipline” from
which the Sheriff might appeal. The Oppenheimer Repor t has no
consequence for Sheriff Essick’s duties, tenure, compensation, or benefits. If
criticism of the conduct of elected officials were “discipline” subject to a full

8 Sheriff Essick cites Sparks v. Kern County Bd. of Supervisors (2009)
173 Cal.App.4th 794, but that case does not hold that an elected s heriff is an employee of the Board of Supervisors within the meaning of the Pitchess statutes. Cases are not precedent for propositions they do not consider. ( McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38.)

# REDACTED

13 array of due process rights for determining truth and accuracy, our
democracy would f

unction rather differently than it does. Any statements
from members of the Board of Supervisors approving or disapproving Sheriff
Essick’s conduct, individually or collectively, are expressions of the
Supervisors’ own free speech rights and do not amount to discipline.
( Pickering v. Board of Education (1968) 391 U.S. 563 , 574 [“statements by
public officials on matters of public concern must be accorded First
Amendment protection”].) The truth and accuracy of such statements must
be open to testing in t he public square. Indeed, the fact we are dealing with
what may fairly be characterized as political speech among elected officials

toward one another underscores the importance of reading the CPRA in favor

of disclosure.
Ignoring the overarching governance and free speech aspects of the
situation here, Sheriff Essick urges us to treat him as a subordinate of the
Supervisors, subject to their charge. He insists the County must be his
“employer,” otherwise the investigation here would have been merely an idle
act. But he overlooks something basic about a system of divided government

in which there are checks and balances. One of those cross

- checks, at county
level, is the oversight authority of the Board of Supervisors ove r other county

officers. (Gov. Code, § 25303.) A central role of the Board of Supervisors, like

any other legislative body

, is to investigate the conduct of executive officials
and thereby shine a light on matters that the voters of the County may wish

t o know. Here, the voters of the County have ultimate a uthority over the

county s heriff, and they are entitled to be informed as to that person’s
strengths , as well as weaknesses, successes and failures

— including t he
person’s ability to model traits of civ ility and respect for others that may be
expected in an official who should embody those values for the public.

# REDACTED

14 C. By Commis s ioning t he Preparation of the Oppenheimer Report
, t he County of Sonoma Did N ot Take on t he Role of Sheriff Essick ’s “Employer”
Changin g gears, Sheriff Essick asserts that, under Copley Press v.
Superior Court

, supra , 39 Cal.4th 1272

, it is irrelevant whether the Board of
Supervisors is the s herif f ’s employing agency in the normal course

, because,
on the facts presented here, “ Sonoma County functioned as [Sheriff] Essick ’s

employing agency by initiating the complaint intake, deciding to investigate,
determining the process of investigation, making a final determination,
issuing discipline , and maintaining the r ecords ” relating t o the complaint

. Thus, Sheriff Essick argues, by investigating actions carried out by him in his
capacity as a “peace officer,” the Board of Supervisors effectively took on the
role of Sheriff Essick’s employer. We cannot agree.

Because t he Oppenheimer R eport was the product of an independent

outside inquiry , the holding in Copley Press does not apply. In that case, San
Diego’s Civil Service Commission performed statutorily mandated functions
as to internal peace officer discipline the county sherif f ’s d epartment would

otherwise have handle d

. ( Cop ley Press

, supra , 39 Cal.4th at p. 1292.) There
was no dispute th at the records there were produced in what was tantamount
to an internal personnel discipline process

. O ur Supreme Court found that
shifting th is internal affairs function to an outside agency did not strip the

records at issue there of th e protection they would have had if genera ted
internally

. ( Id . at p. 1294.) Here, by contrast, the Sonoma County Board of
Supervisors was performing an independent investigative inquiry

. Legislative oversight is something vastly different than the routine discipline

of a rank

- and

- file peace off icer and cannot be compared to outsourcing a
routine internal discipline function.

# REDACTED

15 Th e more analo gous precedent is Pasadena Police Officers Ass n. v. Superior Court ( 2015) 240 Cal. App.4th 268

. In that case, the City of
Pasadena retained an independent consultant to review its police
department’s policies following a fatal shooting of an unarmed teenager. ( Id

. at p. 274.) The Los Angeles Times and others sought disclosure of the
resulting report under the CPRA. ( Pasade na Police Officers Assn. , at p. 274. )
The trial court denied a preliminary injunction in the ensuing “ reverse ”

CPRA case, and the Court of Appeal affirmed. ( Pasadena Police Officers

Assn., at pp. 274

– 275.) The court reasoned that the report did not refl ect the
advancement, appraisal or discipline of the officers involved in the shooting,

and it refused to interpret the Pitchess statutes so broadly as to “ ‘ sweep virtually all law enforcement records into the protected category of “ personnel

records. ” ’ ” ( Id

. at p. 288.) So, too, here

, Sheriff Essick ’s argument, taken to
its logical conclusion, would allow the Pitchess statutes to be u sed as a veil to

conceal all record s held by any agency or department of the County
concerning acts done in hi s official capacity if anything in those records is
critical of him or could in some way place him in an unflattering light

. We
reject the argument. The Pitchess statutes, properly read, provide no shield
against embarrassment to an elected official who also happen s to be a peace

officer.

D. Sheriff Essick ’s E stoppel C laims D o N ot M ake the Records C onfidential

As a backup line of argument, Sheriff Essick contends that the
Oppenheimer Report is confidential because the County of Sonoma promised

him its investigation would comply with POBRA

. According to Sheriff

Essick

, the County of Sonoma’s agreement to conduct the investigation under

POBR A created a n enforceable legal promise that the records would be

# REDACTED

16 confidential and he would have the right to a de novo administrative appeal

, “whether he was entitled to them or not .” We are not persuaded.

Because n othing in the POBRA statutory scheme explicitly grant s or

mention s confidentiality from CPRA requests
, th ere was no misrepresentation or concealment of any material facts here

. By voluntarily
granting Sheriff Essick POBRA protections, Sonoma County was offer ing to

go beyond what it was bound to do to ensure the investigation was procedurally fair. That gave Sheriff Essick, for example, a right to have

counsel present during his interview and to have the interview conducted

under certain neutral conditions, but it did not create any right of
confidentiality. Sheriff Essick emphasizes that he was promised a right of

de novo administrative appeal, along with the other procedural protections
provided by POBRA; presumably, as we understand the argument, that

means h e had a right to have the initial report and findings held in

confidence until he exhausted his administrative appellate rights. But since

POBRA is silent on confidentiality, any claimed expectation of a right to
appeal was independent of that issue. If the investigative report and findings

were to be treated as confidential, the only arguable legal source for that
protection came from outside of POBRA

— specifically Penal Code sections

832.5, 832.7 and 832.8 of the Pitchess statutes, which, understandably,
supply the primary basis for the argument Sheriff Essick advances in this
appeal. Our conclusion that those statutes provide no confidentiality

protection eliminates any possible legal foundation for his estoppel argument

as well.

In the end, therefore, we reject Sheriff Essick’s POBRA

- based estoppel

argument for the same reasons we reject his primary line of argument.

Absent any confidentiality protection provided by the Pitchess statutes, there

# REDACTED

17 is no substance to his estoppel cla im. If Sheriff Essick believed Sonoma
County’s commitment to abide by POBRA procedures meant that any report
produced at the conclusion of the investigation would be “absolutely”

confidential, his claimed expectation of secrecy amounts to nothing more tha n

a misunderstanding of the law. He could not possibly have relied justifiably

on the County guaranteeing him a right to confidentiality that POBRA does

not provide. And he cannot now bootstrap his way to confidentiality by
invoking POBRA indirectly, via an estoppel argument that cannot be
supported by proof of misrepresentation, concealment or reasonable reliance.

III. DISPOSITION
The order of the trial court denying Sheriff Essick’s request for a
preliminary injunction is affirmed. This court’s July 30, 20 21 order
prohibiting the County from releasing the records that are the subject of this

appeal shall expire 30 days from the date this opinion i s filed

. The
unredacted version of this opinion shall likewise remain sealed for 30 days
from the filing of thi s opinion

. Once that period expires, the unredacted
version of this opinion shall become public and the County may release the

records

, unless the California Supreme Court orders otherwise. Costs shall

be awarded to the r espondents.

STREETER, J.

WE CONCUR:

POLLAK, P. J. DESAUTELS, J. *

* Judge of the Superior Court of California, County of Alameda

, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

# REDACTED

Essick v. County of Sonoma

– A162887 Trial Court: Superior Court of California, County of Sonoma

Trial Judge: Hon

. Jennifer V. Dollard

Counsel: Smith Dollar, Diane Aqui ; Law Offices of Joseph G. Baxter and

Joseph G. Baxter, for Plaintiff and Appellant.

Colantuono, Highsmith & Whatley, Michael G. Colantuono, Matthew C. Slentz, and Abigail A. Mendez, for Defendants and Respondents.