Grand Jury Accusation against Bishop Police Sergeant Dismissed

An accusation brought against Bishop Police Sergeant Larry Cox by the Inyo County Grand Jury, alleging he had violated several sections of the Bishop Police Department policy manual, was dismissed August 17, 1999, by a visiting judge on the motion of Cox’ LDF panel attorney, Christopher W. Miller, of Mastagni, Holstedt & Chiurazzi.

A grand jury accusation is similar to an indictment, except that its sole purpose is the removal of public officials from office. The controlling statute is Government Code Section 3060, which replaced several prior California statues dealing with misfeasance, malfeasance, and nonfeasance in office.

Accusations against local officials usually are prosecuted by the local district attorney. When the accusation against Cox was filed in June, however, the Inyo County district attorney recused himself from prosecuting the case. A senior assistant attorney general was appointed to prosecute the case in his stead. The case was assigned to a visiting judge for hearing and trial, as both Inyo County superior court judges also recused themselves because they knew the parties involved.

The Inyo County Grand Jury did not allege criminal misconduct or failure to perform a mandatory duty in Cox’ case. Instead, the grand jury merely alleged he had not performed discretionary functions under the departmental manual. The allegations were based on testimony taken over several months of various officers, dispatchers, and city residents.

In Cox’ defense, Miller urged the court to dismiss the accusation because (1) Cox did not fit the statutory definition of a “public officer” subject to Government Code Section 3060; and (2) the accusation lacked any evidence whatsoever to show Cox had willfully failed to perform a mandatory duty.

The cases interpreting Section 3060 uniformly have applied the statute to elected or appointed officials, such as sheriffs, chiefs of police, district attorneys, and other officials appointed to positions created by state or local statute. Those cases establish a set of criteria for determining whether a particular public employee or official may be prosecuted under Section 3060, including independence of authority, statutory obligations, and limits upon a term of employment.

A sergeant of police whose position was created and may be dissolved by the chief of police or the city council does not meet those criteria and, therefore, is not a public official for purposes of the statute.

The second issue in the case was whether the grand jury has alleged sufficient evidence to show Cox had engaged in misconduct in office by willfully failing to perform a mandatory duty. The Bishop Police Department Manual is not a statute or regulation; it is simply a set of guidelines which can be changed or enforced at the discretion of the chief of police.

Cox could not be said to have violated a mandatory duty of his office when he was charged with nothing more than doing the job of a supervising peace officer by exercising discretion and judgment. The accusation simply failed to allege any evidence whatsoever to show a “purposeful failure to carry out mandatory duties of office,” the standard for removal from public office under Section 3060.

At the second hearing on the case, the assistant attorney general conceded Cox both did not meet the definition of a “public official” and was not properly accused of failing to perform a mandatory duty of his office. The assigned judge, the Honorable Robert Martin (a former trial and appellate court judge), granted the motion to dismiss both counts of the accusation against Cox.