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 by 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.
