By Royal Calkins
It was political theater at its best, or worst, depending on whose side you were on.
The actors were three Monterey County sheriff’s commanders, mid-managers with impressive titles, a step above sergeants.
The stage was Main Street in Salinas. The audience was the local press corps, a busy and sometimes gullible bunch whose idea of election coverage was to repeat whatever they were told. They liked it best when the resulting stories could be labeled with a headline or voiceover declaring something simple like “Charges Fly in Sheriff’s Race.”
It isn’t clear who wrote the script. The commanders were acting in support of their boss, Sheriff Steve Bernal, who was running for re-election in 2018 and was being challenged by one of his deputies, Salinas City Councilman Scott Davis. GOP operative Brandon Gesicki was managing the campaign and David Armanasco, the Monterey PR man and wheeler-dealer who serves as an unofficial adviser to Bernal, was helping out.
Most of the lines were delivered by Cmdr. Joe Moses. Though his assignment at the time was to help run the county jail, not to investigate anything outside the jail, he put a worried look on his face and told the cameras that he and his commander colleagues, Mark Caldwell and Archie Warren, since retired, were conducting a criminal investigation and had uncovered important evidence. He said they had documents indicating that Davis had embezzled some $30,000 from the union, the Deputy Sheriffs Association, with the help of his campaign consultant, Christian Schneider, and the president of the DSA, sheriff’s Sgt. Dan Mitchell.
It was explosive stuff. Or so it seemed. The commanders clearly wanted to give the impression that this was the real deal, a legitimate criminal investigation, and that someone’s goose was cooked.
Davis, Schneider and Mitchell denied it all, of course, but they hadn’t seen the script beforehand and were caught off guard. Their denials weren’t as convincing as the carefully crafted words of Moses and his colleagues, who were out of uniform and appeared to be wearing their best suits for the occasion.
The accusations led the evening news and the 11 o’clock and were repeated the next day. The strategy worked. The Davis campaign, fairly uphill from the start, was history. Toast. Yesterday’s news.
Davis and Schneider came back rather strongly just a week later with a letter from the state Department of Justice clearing them. The damage had been done, however. The Davis campaign would never recover.
Mitchell never really came back, however. His doctors think the stress of a rough-and-tumble campaign contributed to the stroke that cut his law enforcement career short.
Even if the commanders had been conducting a legitimate investigation, it was extremely uncommon for active law enforcement officers to hold a news conference to announce their allegations in a public setting before running it past their superiors and county prosecutors. A better headline might have been something like “Sheriff’s Supporters Air False Allegations Under Color of Authority.” Yet the press, including a news blog operated at the time by this reporter, didn’t figure that out until months later when it no longer mattered to the voters.
So why are you reading about this now? Good question. This piece is meant to belatedly repair the reputations of the targets of the Moses-Caldwell-Warren attack and to alert taxpayers to the fact that the government of Monterey County is paying the legal fees for the commanders as litigation between the two camps continues on its expensive path through the court system.
In other words, the county is spending at least tens of thousands of dollars to help three Bernal supporters whose provably false public accusations had nothing to do with their actual Sheriff’s Department duties. That’s what the commanders have said in court and what two judges have essentially verified. Unfortunately for the Davis camp, however, they’re losing in court so far — for reasons that have little to do with the truth of the matter.
Even before Bernal’s ballot box victory, the Deputy Sheriffs Association filed an unfair labor practice lawsuit against Bernal and his department. The county quickly filed a countersuit but it was tossed out by Judge Marla Anderson, who also raised questions about why the County Counsel’s Office was acting as co-counsel for the commanders.
Later, Judge Susan Matcham ruled mostly in favor of the commanders in a defamation lawsuit brought by Davis, Mitchell and Schneider. The judge found that Davis and Mitchell amounted to public figures during the campaign and, therefore, could prevail only if they could prove that the commanders had acted with malice, reckless disregard for the truth. That’s a weighty standard. It’s the same rule that prevents most politicians from being able to win libel cases.
As for Schneider, Matcham ruled that he was not a public figure and had been defamed. However, she went on, it wasn’t feasible for his case to move ahead without the other plaintiffs.
In the case of Davis and Mitchell, Matcham also ruled that the allegations amounted to constitutionally protected political speech because they were made for political purposes rather than law enforcement purposes. She apparently was swayed by arguments such as this one from Moses: “I felt that this information was highly relevant to members of the public, particularly in connection with Davis’s fitness for office in advance of an important election.” Not a word about criminality or an investigation or acting on behalf of the Sheriff’s Department.
Poking at the wounds suffered by the Davis group, Matcham also ruled that Davis, Schneider and Mitchell should repay the defendants’ legal fees. County Counsel Les Girard, the county’s chief attorney, says he can’t reveal how much the county has spent so far because it might tip the other side to the county’s legal strategy.
The Davis camp filed an appeal Thursday with the 6th District Court of Appeal, arguing that the commanders had acted with malice, meaning they knew the allegations were false.
“Reasonable inferences from the plethora of circumstantial evidence support the defendant’s plan … was to pay no regard to the falsity of their statements,” the appeal contends. “Defendants knew the statements would derail the Davis campaign and impute criminal implications to plaintiffs. By intentionally ignoring the truth, defendants furthered their conspired objective to sabotage Davis’ campaign and harm plaintiffs’ professional reputations in the process.”
Mitchell said he was surprised when he heard taxpayer money was being used to pay the commanders’ bills. He said taxpayers have been hit twice because the commanders were on the clock while preparing their attack on the Bernal campaign and meeting with the press “trying to get reporters to write fake news about Christian, Scott and me.” Mitchell said Judge Anderson had ruled that the commanders had committed an unfair labor practice by airing their accusations while on duty.
Mitchell estimated that his side has paid about $50,000 in legal fees so far.
Bernal declined to comment for this article and department officials said the commanders could not comment either. Armanasco, his spokesman, said at the time that the sheriff had not been aware of the allegations against Davis and the others and that the commanders were acting on their own. The day after the news conference, Moses told a reporter that he had been cautioned by a supervisor to stop identifying himself as a sheriff’s commander when discussing the accusations.
"Taxpayers should not have to pay the bill for what I believe are inappropriate activities" Supervisor Luis Alejo
Girard, the county attorney, said recently the county’s decision to pay the commanders’ legal fees was discretionary and subject to change.
“Because this is a discretionary decision, the public entity may continue to provide a defense if there is a question about course and scope subject to a reservation of rights to seek recovery of defense costs in the event it is determined or evident that the employee was not (acting) in the course and scope” of their official duties, he said in an email.
In other words, Girard said the matter may be revisited when the litigation concludes.
The county’s decision to pay the legal fees was ratified on a 4-1 vote by the Board of Supervisors. Exactly what the supervisors were told about the matter isn’t known publicly because the discussion was in a closed session. The dissenting vote was cast by Supervisor Luis Alejo, who had supported Davis in his campaign for City Council.
“I opposed funding their legal expenses because these were actions not in their normal scope of duties and they made serious, unfounded allegations without the benefit of a thorough investigation,” Alejo recently explained. “I believe (the commanders) should have recused themselves even before making public allegations as they were conflicted, and the matter should’ve properly been handed over to an independent law enforcement agency for investigation to later make any allegations or conclusions.”
He continued, “I do believe the county supervisors should collect our legal fees as taxpayers should not have to pay the bill for what I believe are inappropriate activities and not following proper investigative protocols.”
Girard said the request for legal fees came directly from the commanders, not the sheriff or the department.
Supervisor Jane Parker said this week that it seemed like an unusual request but she was persuaded to agree because of the understanding that the county could “demand repayment if it turns out that the commanders were not functioning within the scope of their actual duties.”
Supervisors John Phillips, Chris Lopez and Mary Adams declined to comment.
Schneider, who has been busy probing campaign finance reports and filing official complaints since the end of the 2018 campaign, said the media overlooked the fact that Davis and Mitchell were both publicly accused of crimes by higher-ups in the department, creating tremendous stress. He said there were other examples. For instance, when the commanders publicly alleged wrongdoing within the Deputy Sheriffs Association, they told reporters that Mitchell was about to be arrested.
What department officials did “was threaten and coerce public employees in the workplace and in the public sphere as their bosses and as law enforcement — using their rank and title,” the consultant said.
“They investigated. They intimidated. And they coerced private citizens for purely political purposes.”
This article originally reported that Luis Alejo had endorsed Davis’s campaign for sheriff. He endorsed Davis’s City Council campaign but made no endorsement in the sheriff’s race.
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