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At What Cost?

Sonoma County commits $3 million to Andy's Unity Park, but where's the unity?

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WATCH THIS SPOT  Plans are in the works to build a county part at the site of Andy Lopez’s shooting, but it’s short of what some residents want.
  • WATCH THIS SPOT Plans are in the works to build a county part at the site of Andy Lopez’s shooting, but it’s short of what some residents want.

The Sonoma County Board of Supervisors voted last month to spend $3 million on a partial build-out of Andy's Unity Park in Moorland—even as it has committed up to $2.35 million in legal fees to beat back a federal lawsuit brought by Andy Lopez's parents. Lopez was killed by a sheriff's deputy in 2013.

The park and the legal fees are driving a split narrative around the county's posture in the post-Lopez Sonoma County political landscape, exacerbated by persistent officer-related lawsuits emerging from the Sonoma County Sheriff's Office.

On the one hand, the board of supervisors and Sonoma County Counsel's Office doggedly continue to pursue a legal strategy, using outside counsel, in a case that may eventually find its way to the U.S. Supreme Court.

According to records reviewed by the Bohemian, the county has signed off on three legal services agreements with outside attorneys since November 2013, when the Lopez family sued the county and Sheriff's Deputy Erick Gelhaus (now a sergeant), charging that the Oct. 22, 2013, shooting ran contrary to the U.S. Constitution's Fourth Amendment provisions around reasonable force in policing. Lopez was shot multiple times and died on the scene.

On the other hand, the board of supervisors clearly wants to be part of the county's healing process, after the Lopez shooting ruptured public trust in policing in the county's Latino neighborhoods—and in March approved a $3 million contract for a limited build-out of Andy's Unity Park on Moorland Avenue, after rejecting a fully tricked-out proposal to build a park that included a skate park, a community garden and a basketball court.

The supervisors "agreed to move forward with the minimum level of development, which includes open turf, trees and a memorial area for Lopez," reported the Press Democrat on March 31. "That excludes a wide range of additional amenities, including a skate spot, basketball court and community garden, which would cost an additional $564,500."

In the meantime, how much has the county spent on the Lopez suit? Citing the ongoing litigation, now in its fourth year, the county counsel's office couldn't say. But current legal services contracts with the three law firms it's hired indicate that the county is willing to spend up to (and perhaps more than) $2.35 million through next June to defeat the suit brought against Sonoma County and Gelhaus. By then, voters will be gearing up for a local election to replace Sheriff Steve Freitas, who recently announced he would retire after his term ends in January 2019. Meanwhile, a citizen's group began a campaign to recall Freitas last month.

According to legal services agreements reviewed by the Bohemian, the county currently has a $500,000 contract with the Santa Rosa firm of McNamara, Ney, Beatty, Slattery, Borges & Ambacher, which runs through November. That contract began as a two-week, $25,000 deal signed by the county right after the Lopez shooting. It was extended by three years as of Dec. 1, 2014, to a not-to-exceed $500,000 agreement.

Similarly, after an initial June, 2015, $25,000 contract was signed with the firm of Robinson & Wood, the county amended that agreement to a do-not-exceed limit of $325,000 the following June. That contract expires at the end of May.

The county has another $1.5 million contract with Geary, Shea, O'Donnell, Grattan & Mitchell that runs through June 2018. The firm had a previous $1.5 million retainer contract with the county which ran from 2010 through October 2013, and which was extended to the end of June 2015 following the Lopez shooting. In July 2015, the county signed a second $1.5 million contract with the firm (which, in fairness, could include legal work for the county outside the Lopez case). Steven Mitchell, a principal in that firm, committed suicide in June 2016, adding another tragedy to a case filled with them.

The contracts are subject to amendments to enhance payments and extend the term of the agreement. And the not-to-exceed overall $2.35 million limit does not include reasonable expenses invoiced by the law firms. No trial date has been set.

"To this day, I have no idea why Sonoma County is being resistant to settling this," says Francisco Saiz, a county resident who says he has gone to every supervisors meeting since the Oct. 2013 shooting with a photo of Lopez affixed to his chest.

Last week the counsel's office turned back two Bohemian California Public Records Act requests for Lopez-related legal expenditures to date.

"The County understands and appreciates the public's interest in knowing how much money the County spends for litigation related expenses," wrote Deputy County Counsel Petra Bruggisser in her reply. The county has disclosed information before, she says, but not until cases are closed and not in active litigation.

"However, in order to maintain the integrity of the litigation process in active cases, the county does not disclose the amount of fees and costs spent in pending litigation matters," she continued. "This information, including the aggregate amount spent, is exempt from public disclosure based on attorney-client communication, attorney work product and pending litigation privileges."

Bruggisser cautions against reading too much into the $2.35 million commitments. "Please note that not-to-exceed amounts in legal services agreements are generally included to denote a ceiling limit. The actual fees and costs expended under these contracts can be significantly lower."

In a followup email, she said the fees and costs could also be higher than the original contract, and that those fees and costs would be reflected via amendments. Those are subject to approval by the board of supervisors. "Generally, legal service agreements include provisions that limit the term of the agreement and the maximum amount of fees and costs that can be expended under each agreement."

Sonoma County lost its bid to get the suit dismissed in early 2016. Instead, U.S. District Court judge Phyllis Hamilton ruled that the Fourth Amendment issue over the reasonableness of the shooting was a contestable issue.

In its pleadings, the county made the claim that Gelhaus was entitled to qualified immunity in the lawsuit. That claim was denied and the county appealed. The appeal is pending in the Ninth Circuit Court in San Francisco. There's a hearing in Pasadena in May.

Citing a federal gag order, Lopez family attorney Arnoldo Casillas could not comment for this story. According to media reports from the time, his L.A.-based law firm, Casillas, Moreno & Associates, won a multi-million-dollar 2012 case that involved a 13-year-old who was shot and killed by a Los Angeles police officer while playing cops and robbers with a toy gun. Lopez was killed while carrying a toy replica of an AK-47.

Fifth District Supervisor Lynda Hopkins is new to the board and represents the part of town where Andy's Unity Park is located. The site is an overgrown field now with a shrine to Lopez.

Citing the pending litigation against the county, Hopkins couldn't comment on the Lopez-family lawsuit. She said that in the Moorland-Roseland area "there's a tremendous amount of need to build trust and support the healing process."

Hopkins says that coming in as a new supervisor means she isn't embroiled in the tragedy. She'd like to see a fully built park. "We don't want to be left with a half-built park," she says. "The community will feel the same way as they have for decades."

The push to make even a half-fulfilled Andy's Unity Park a reality is a good first step, says Francisco Saiz, as he notes the decades-long neglect that's gone on in Moorland-Roseland.

"It's amazing how Sonoma County would allow this sort of division to happen, to allow this sort of infrastructure to be so inferior to the rest of the county," he says.

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