Opinion: Sheriff accusation shows underutilized role of civil grand jury

Our county needs watchdogs to investigate potential acts of wrongdoing

In 2020, something unusual took place before a Santa Clara County criminal grand jury looking into allegations that members of the sheriff’s office might have sought bribes in return for concealed firearms permits. The unusual event was that Sheriff Laurie Smith invoked her Fifth Amendment right against self-incrimination.

So, 16 months later that event led to another unusual event: The Santa Clara County civil grand jury formally accused Smith of willful and corrupt misconduct. The accusations, which extend beyond the gun permits issues, are filed as “The People of the State of California vs. Laurie Smith.”

The differences between the state’s criminal and civil grand juries are many, and most folks would be confused. Despite its crucial work and investigative powers, the civil grand jury (CGJ) remains low-profile.

The CGJ is an arm of the Superior Court, but it seldom deals with courtrooms and legal proceedings. Residents volunteer and are selected to serve one-year terms.

A watchdog agency, the CGJ can investigate any local (not state or fed) governmental entity and craft reports highlighted by findings and recommendations. Agencies targeted by a recommendation must respond in writing. Yet, even where an agency agrees with the findings and recommendations, implementation of those recommendations is spotty and not required.

The Smith accusations, however, stem from another unique power of the CGJ, and one with many more teeth. CGJs can investigate elected or appointed officials – compelling testimony using subpoena powers – and decide if they’ve uncovered enough evidence to make an accusation of “willful or corrupt misconduct.” This can lead to a trial that in turn may result in forcing the official from office.

Quite a power, but it’s mostly hidden.

How rare are such accusations? The Mercury News cites retired county prosecutor William Larsen in saying that only about 100 local officials in California have been removed under this process in the past 150 years.

A report by the 2001-02 CGJ found only 37 appellate court decisions in California involving accusations between 1885 and 1999. That report was an adjunct to an accusation that panel leveled against Mountain View Mayor Mario Ambra for violating the city charter by repeatedly going to city staff with his opinions and urging actions instead of going through the city manager. He ended up resigning. The Ambra case is our county’s only CGJ accusation in the last 40 years, according to The Mercury News.

There is a recent Bay Area CGJ case, the 2019 accusation against Contra Costa County Assessor Gus Kramer in 2019. It resulted in a trial, a hung jury and eventual dismissal.

A CGJ conventional report in 2005 targeting former San Jose Mayor Ron Gonzales, involving a city garbage contract, led to criminal charges later dismissed by a judge.

The CGJ power to wage such accusations is the law and is prominent in descriptions of CGJ duties. The 2021 CGJ, by any measure, performed yeoman’s work. The CGJ lists 65 witnesses interviewed during its investigation.

Santa Clara County District Attorney Jeff Rosen called the CGJ’s action “unprecedented,” in an interview with NBC Bay Area.

What sparks such an investigation? The Santa Clara County Board of Supervisors, led by Supervisors Joe Simitian and Otto Lee, asked the CGJ to investigate Smith. Supervisors already had a number of beefs with the sheriff.

Similarly, Contra Costa County supervisors had a number of beefs with their assessor, and they asked their CGJ to investigate.

The Mayor Gonzales report stemmed from a normal complaint filed with the CGJ. (All complaints are confidential.)

The Ambra case followed a different route. The Mountain View city manager went to the county DA, who empaneled the civil grand jury.

Bravo to the county supervisors for realizing the possibilities of the civil grand jury. Bravo to the 2021 CGJ for having the confidence and drive to tackle the job.

This case hopefully will encourage officials and whistleblowers to consider enlisting the CGJ, and encourage future CGJs to consider accusation investigations when they feel it is warranted. Our county needs watchdogs.

The Mercury News
By Michael Krey
January 29, 2022

Michael Krey is co-president of the Santa Clara County chapter of the California Grand Jurors’ Association.