(Photo courtesy of Santa Clara County Sheriff's Department via San Jose Spotlight)

Santa Clara County Sheriff Laurie Smith, after months of negotiation, refuses to sign an agreement allowing a civilian law enforcement watchdog access to critical records.

Now, county officials are stepping in and subpoenas might be on the way.

The Board of Supervisors voted unanimously Nov. 3 to direct the county’s attorney to draft a policy to extend subpoena powers to the Office of Correction and Law Enforcement Monitoring (OCLEM), which provides independent monitoring of county law enforcement agencies.

This would allow the oversight committee access to personnel files for deputies and investigation information, despite Smith’s refusal to sign multiple information-sharing agreements.

“Police reform requires oversight and oversight requires access,” District 5 Supervisor Joe Simitian told San José Spotlight. “If our monitor is denied access, that’s a serious impediment to meaningful reform.”

OCLEM was established in 2018 following the murder of Santa Clara County inmate Michael Tyree by three correctional officers three years earlier. Consulting groups and a blue-ribbon commission urged supervisors to create a civilian oversight body to monitor the Sheriff’s Office, including its corrections operations. The goal was to improve transparency and restore public trust in the county’s agencies.

The civilian oversight office was supposed to review use-of-force trends, misconduct allegations, public complaints and inmate grievances.

In 2019, OIR Group, a consulting firm that provides independent review of law enforcement practices, was selected to head OCLEM and begin work this year.

According to OIR Group, Smith has refused to sign an agreement that would allow the office access to files and other information.

“While the sheriff and her department have made positive strides, I am still disappointed with the information sharing agreement proposed by the sheriff at our last BOS meeting.”

Supervisor Susan Ellenberg

Other county departments, including the county executive and county counsel’s offices, have signed agreements.

“We can’t do any type of auditing,” OCLEM Project Manager Michael Gennaco said. “We would only have a small percentage of use-of-force incidents for our review, when the whole impetus behind the ordinance and the creation of oversight was in response to the murder of Michael Tyree. One would expect that the oversight entity coming out of that would have an opportunity to look at any force incident it wanted.”

“In the past we have received full access to anything we need to do our work and that hasn’t happened here,” he added.

Smith proposed a narrowed version of the agreement in October that allowed limited access to peace officer records and records regarding use-of-force incidents related to completed internal affairs investigations.

Her proposal denied OCLEM access to current Internal Affairs investigations, inmate grievance databases and real-time notification of critical incidents such as deputy-involved shootings.

“I am concerned that this access will negatively affect the independent, constitutionally and statutorily designated investigative functions of the Sheriff’s Office, and/or obstruct my office’s investigative functions,” Smith wrote to the board.

Smith added there are legal impediments to sharing databases that contain criminal offender record information or other confidential information.

OIR Group asserted that limiting records to completed investigations would prevent monitoring investigations in real time and could “incentivize the Sheriff’s Office to delay or inactivate investigations to avoid monitoring.”

Gennaco said the Sheriff’s Office has not provided any legal reason for declining access to this information.

Alison Brunner, CEO of the Law Foundation of Silicon Valley, who served on the blue-ribbon commission, said it’s appalling demands for transparency have not been heard since Tyree’s murder.

“Meaningful oversight is instrumental to building community power and preventing injustice within our county jails and Sheriff’s Office,” Brunner said. “We know that these systems disproportionately target people of color through use of force tactics and violence, and the sheriff and her office’s refusal to sign the information-sharing agreement with OCLEM means they are part of the problem, rather than the solution.”

Silicon Valley NAACP President Rev. Jeff Moore said the Board of Supervisors should explore all legal options, including removing Smith from office. Smith was re-elected for her sixth term in 2018.

“What’s going on that they don’t want people to see?” Moore said. “In the best interest of the community, if she’s not willing to do what the community has requested, she should walk away from office. She’s holding progress hostage for her own personal reasons.”

The county’s attorney will bring the policy to the supervisors on Dec 8 and will ensure it’s consistent with Assembly Bill 115, which empowers counties to create a sheriff oversight board authorized to issue subpoenas.

“It’s not my preference,” Gennaco said. “I’d rather work this out voluntarily and not have to send subpoenas out. We’ve never had to use this before.”

Supervisor Susan Ellenberg expressed frustration with the sheriff’s lack of cooperation.

“While the sheriff and her department have made positive strides, I am still disappointed with the information sharing agreement proposed by the sheriff at our last BOS meeting,” Ellenberg told San José Spotlight. “Our community has been very clear and has been actively engaging in this process. I just don’t see how we move further out of the darkness and into a space of healing between law enforcement and the community if the sheriff won’t allow the sunlight in.”

Simitian noted the subpoena process is “unduly burdensome.”

“That is a somewhat costly and cumbersome process that could be avoided if the sheriff would simply sign the proposed agreement,” he said. “But if she is determined not to sign the agreement, the subpoena power is the only remaining option to my knowledge.”

Contact Devin Collins at devcollins418@gmail.com or follow @dev_collins2 on Twitter.

This story originally appeared in San Jose Spotlight.