Stout: Board of Supervisors May Remove District Attorney, Lockyer Says

Board of Supervisors May Remove District Attorney, Lockyer Says

By a MetNews Staff Writer

A county charter may authorize the Board of Supervisors to remove the district attorney or another elected official from office, Attorney General Bill Lockyer has opined.

Removal of local elected officials is a matter of home rule, Lockyer said in a published opinion made public Tuesday, as long as specific state laws are not violated.

The opinion, prepared for Lockyer by Deputy Attorney General Anthony S. Da Vigo, was requested in April by District Attorney Dennis Stout of San Bernardino County. Stout has been under fire this year as a result of his office’s investigation of alleged wrongdoing by Supervisor Jerry Eaves.

Complaints were voiced after the Sheriff’s Department disclosed it had spent most of last year investigating Stout’s office and had secretly recorded phone conversations among the district attorney, top aides, and Eaves’ unsuccessful opponent in last year’s election, Ed Scott.

The transcripts of those conversations, attorneys for Eaves claimed, showed that Stout has followed a political agenda in seeking to remove Eaves from office.

Eaves was named in a Political Reform Act suit charging that he had accepted gifts from individuals and companies that did business with the county. He admitted accepting the gifts and paid $7,000 in restitution in exchange for being dropped from the suit.

Stout, however, pursued a statutory removal proceeding, although he later removed his office from the matter and asked Lockyer to take over the case. The little-used procedure could result in Eaves’ removal from office following a jury trial.

The question of whether supervisors could remove an elected official from office was raised in March after supervisors asked County Counsel Alan Marks to prepare a code of conduct for county officials. The request came at the same time that supervisors voted to send a letter to Stout asking for an explanation of the contacts between his office and Scott.

Asked at the time what sanctions could be imposed against an official who violated the proposed code of conduct, Marks mentioned a section of the county charter which allows supervisors to remove an elected official—other than a board member—by four-fifths vote following notice and a hearing.

Marks said the action had not been taken in recent history, but noted that a constable resigned his position more than 30 years ago when faced with the prospect of removal by the board.

Unlike the accusation-and-removal procedure used in the Eaves case, however, the charter provision has no support in state statutes. But it is consistent with the state’s constitutional home rule provisions, Lockyer said in his opinion, which allow a charter county to provide for the “election or appointment, compensation, terms and removal” of county officers.

The attorney general noted, however, that he was not being called upon “to consider any particular basis or cause for removal” or what type of hearing would be required.

The opinion is No. 01-408.