Here's the entirety of Section 4 of the California State Constitution
SEC. 4. County charters shall provide for:
(a) A governing body of 5 or more members, elected (1) by district
or, (2) at large, or (3) at large, with a requirement that they reside
in a district. Charter counties are subject to statutes that relate
to apportioning population of governing body districts.
(b) The compensation, terms, and removal of members of the
governing body. If a county charter provides for the Legislature to
prescribe the salary of the governing body, such compensation shall be
prescribed by the governing body by ordinance.
(c) An elected sheriff, an elected district attorney, an elected
assessor, other officers, their election or appointment, compensation,
terms and removal.
(d) The performance of functions required by statute.
(e) The powers and duties of governing bodies and all other county
officers, and for consolidation and segregation of county officers,
and for the manner of filling all vacancies occurring therein.
(f) The fixing and regulation by governing bodies, by ordinance, of
the appointment and number of assistants, deputies, clerks, attaches,
and other persons to be employed, and for the prescribing and
regulating by such bodies of the powers, duties, qualifications, and
compensation of such persons, the times at which, and terms for which
they shall be appointed, and the manner of their appointment and
removal.
(g) Whenever any county has framed and adopted a charter, and the
same shall have been approved by the Legislature as herein provided,
the general laws adopted by the Legislature in pursuance of Section 1
(b) of this article, shall, as to such county, be superseded by said
charter as to matters for which, under this section it is competent to
make provision in such charter, and for which provision is made
therein, except as herein otherwise expressly provided.
(h) Charter counties shall have all the powers that are provided by
this Constitution or by statute for counties.
Subsection (e) talks about filing vacancies, but it doesn't say that a
charter can violate the explicit 'elected' part. Section (g) says the
legislature has to approve the charter, but the legislature is
directed to provide an elected sheriff.
So, if a superior law, the California Constitution, provides for
elected officers, an inferior law, a county charter, could not have a
superior power.
Other opinions or court cases might shed some light on this. The
question will ultimately be who has standing to challenge the charter.
I would say the California Constitution gives the people of the county
the right to an 'elected sheriff'. That right should be enforceable.
And the pattern of conduct in San Bernardino County over many years
appears to have been used to defeat the requirement in the California
Constitution.
An appointee is always beholden to the appointers.
I'd try to find the act of the legislature that approved the charter
to see if that provision has changed. At minimum this could be an
interesting exercise.
It could start with a notice and demand on the supervisors to provide
for an elected sheriff. Once they are notice, if they act differently,
they can't say they didn't know. It also might generate a response
from county counsel on why it's ok. That way you wouldn't have to
start a lawsuit to get some free legal advice.
Richard Michael
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