Monterey County line | Adobe Stock photo
By Royal Calkins
The laws governing political campaigns are so complicated that even campaign treasurers and the candidates themselves often have a hard time playing by the rules — if, that is, they actually want to play by the rules.
Fortunately for those who do care about such things in Monterey County, political consultant Christian Schneider has the rules practically memorized, which gives him great advantage as he goes about his crusade to either clean up local politics or, as his critics might argue, exact revenge upon those who have done him harm.
Either way, Schneider has hit the target once again, twice actually, by persuading the state’s political watchdog agency to dig into activities that seemingly don’t pass the smell test.
The state Fair Political Practices Commission this month agreed to open investigations into two complaints filed by Schneider. One accuses the Monterey County Counsel’s Office of improper partisanship. We’ll get to that one in a bit.
The other accuses Monterey County Sheriff Steve Bernal of failing to report the gift of free lodging from former county Supervisor Butch Lindley. The FPPC has not indicated whether it will dig into the more salacious element of Schneider’s complaint — that the sheriff repeatedly used Lindley’s guest house south of Salinas for sexual rendezvous with at least one of his Sheriff’s Department subordinates. It does seem likely, however, that the FPPC folks will need to poke around in that aspect of the complaint in order to get to the heart of the matter.
In his sworn complaint to the FPPC, Schneider refers to a former department employee who has anonymously described an affair with Bernal that included visits to the Lindley guest house. He also refers to rumors of other affairs.
In a news release, Schneider also argues that Bernal failed to properly report other gifts and made improper use of county staff and resources when he hosted a state sheriff’s conference last year.
The FPPC receives hundreds and hundreds of complaints annually but it declines to formally take up the vast majority. Schneider, who has helped run campaigns both for and against Bernal, has an advantage in gaining the FPPC’s ear. He understands how the agency works and knows the letter of the law about as well as anyone. The agency informed Schneider by email last week that it would formally investigate the two matters, the 11th and 12 complaints he has filed this year against the county’s political establishment. Most of the resulting investigations remain open.
Bernal has declined to comment on the Lindley matter. The ex-supervisor, on the other hand, acknowledged in an interview with Voices that he had granted the sheriff overnight access to the guest house on several occasions. Lindley said he only wanted to help Bernal avoid the long commute to his rented homestead in the south end of Monterey County. Lindley denied any knowledge of illicit behavior.
Under state law, elected officials are required to file annual reports listing gifts received, most often event tickets or fancy dinners. One state senator once returned all his wedding gifts after learning that he would need to report them. Bernal did not report the use of Lindley house. He has declined to comment on Schneider’s complaint or related matters.
Thus far, the rest of the Monterey County press corps has declined to take on this topic, partly because of tensions between the local media and Schneider while he was running Bernal’s successful sheriff’s campaign in 2014 and an unsuccessful campaign against Bernal in 2018. Actually, tensions understates the case. Schneider’s interactions with KSBW, Monterey County Weekly, The Herald and the Monterey Bay Partisan have been truly heated at times. (The Partisan is a defunct blog once operated by me.) Schneider doesn’t take criticism calmly and, well, neither do most reporters. Unfortunately, other local news operations have largely been unable to set the conflicts aside and report on the underlying issues raised by Schneider.
Which brings us to the other matter the FPPC has chosen to scrutinize, litigation growing out of the 2018 sheriff’s race. The subject of the inquiry is the Monterey County Counsel’s Office, the in-house law firm that represents county government. This complaint requires some background, but it is worth the effort for students of local governance and/or politics. It involves the county’s decision to provide legal counsel for three sheriff’s commanders who launched a coordinated attack on Schneider and associates even though the county’s expenditures could be construed as illegal contributions to the Bernal campaign.
In 2018, Schneider ran the campaign of sheriff’s deputy Scott Davis, who was hoping to unseat Sheriff Bernal. Traditionally, campaigns involving two or more members of the same sheriff’s department are as intense as any campaigns, and this was no exception. The sitting sheriff decides on most promotions, which usually bring large raises and significant jumps in retirement benefits. That makes politics personal.
As election day approached, three sheriff’s commanders aligned with Bernal made a remarkable series of public pronouncements. Seemingly on duty, they accused Schneider, candidate Davis and deputy sheriff’s union official Dan Mitchell of embezzling money from the union and performing other types of skullduggery.
The trio of commanders insinuated that they were acting in their official capacities though one of them, Joe Moses, had no investigative responsibilities at the time. He told a reporter the day after his first press conference that his superiors later told him not to give the impression that he was acting under the color of authority.
News conferences and TV interviews the commanders granted were highly unusual. If they truly were conducting a criminal investigation, the time for a news conference and TV interviews might have been at the end of the inquiry, not the start. If it had been a legitimate investigation, the sheriff himself likely would have been in front of the cameras, along with a detective or two. Moses’ confederates, Commanders Archie Warren and Mark Caldwell, worked in the detective squad but as supervisors, not as sleuths.
The local press corps overlooked the oddity of sheriff’s officials openly accusing a sheriff’s candidate of wrongdoing in the weeks before the election and mostly took the accusations at face value. Schneider ascribes that to confirmation bias — relations between the reporters and Schneider had been tense so he and his associates must have been the bad guys.
The attack on Schneider, Davis and Mitchell, which also involved anonymous emails and leaked confidential sheriff’s files, turned out to be nothing more than political theater. The state Department of Justice quickly sent investigators to town. They soon determined that the Schneider camp had done nothing wrong. Unfortunately for Davis, the damage was already done. He lost.
Naturally, lawsuits ensued. Schneider and associates sued the county as well as the commanders. The results have been mixed but the commanders are currently ahead, pending appeal. Their defense has principally been that their allegations amounted to protected political free speech, not that they were only doing their jobs.
“The Sheriff’s Office weaponized the Internal Affairs Division to silence dissenters, and that bad behavior continues to this day.” Deputy sheriff’s union official Dan Mitchell
Here’s where the County Counsel’s Office comes in.
When county employees are sued in connection with their work for the county, the county is generally obligated to represent them in court, or pay for outside counsel to represent them. In this case, it soon became obvious that the commanders were acting on behalf of the Bernal campaign rather than the department. Even so, the County Counsel’s Office opted to represent the three commanders in three subsequent lawsuits and to hire outside counsel to help defend the trio. In one case, the County Counsel’s Office signed a representation contract with Monterey’s best known law firm, Fenton & Keller, the same day the county was served with legal papers.
The County Counsel’s Office, then headed by now-County Administrator Charles McKee, retroactively sought approval from the Board of Supervisors to represent the commanders in a defamation suit brought by Schneider, Davis and Mitchell. In closed session, Supervisor Luis Alejo reportedly argued that the county should stay out of it. He had been a supporter of Davis’s previous Salinas City Council campaign. Success against Bernal would have made him the first Asian and openly gay sheriff in California.
Because of concerns expressed in the meeting, county lawyers said that if it was determined eventually that the commanders were acting on behalf of the campaign rather than the county, the county would attempt to have the commanders reimburse the county for the legal expenses.
County Counsel Les Girard provided the same information to the FPPC in a September letter.
In court, lawyers for the commanders argued from the start that the accusations made against Schneider and the others were not actionable because they amounted to protected political speech, not because they were conducting official business. If they or the commanders insisted that their efforts were part of an official sheriff’s investigation, it isn’t reflected in the court records reviewed by Voices.
Key to the county’s case was the argument that Davis and Mitchell, because of their roles with the county, were public figures at the time. Public figures, generally celebrities or political figures, are particularly difficult to sue under U.S. libel law, which provides that they must prove the makers of the allegations knew they were false.
In a June court filing, outside counsel for the county provided a list of horrible things that have been said about public figures. It was taken from a 1979 libel action heard by a Southern California appeals court.
“Our political history reeks of unfair, intemperate, scurrilous and irresponsible charges against those in or seeking public office. Washington was called a murderer, Jefferson a blackguard, a knave and insane, Henry Clay a pimp, Andrew Jackson a murderer and an adulterer, and Andrew Johnson and Ulysses Grant drunkards. Lincoln was called a half-witted usurper, a baboon, a gorilla, a ghoul. Theodore Roosevelt was castigated as a traitor to his class, and Franklin Delano Roosevelt as a traitor to his country. Dwight D. Eisenhower was charged with being a conscious agent of the Communist Conspiracy.”
The point, the county lawyers argued, is that “Without glorifying this type of political speech, the import is clear: the voting public is the arbiter of political speech, not the courts.”
Though the court file contains little or nothing to support the argument that the commanders were acting as agents of the county, Girard, the county counsel, said it is common practice to wait until the end of litigation to determine if the county should have been on the hook for the lawyer fees.
Here’s where the FPPC comes back into the picture. The FPPC at Schneider’s request is investigating whether the payment of legal fees for the commanders amounted to a contribution to the Bernal campaign — a potentially illegal contribution in that it wasn’t reported as a contribution and the county didn’t set up a campaign committee or political action committee through which to process the money.
Girard declined to comment on the FPPC inquiry.
As complicated and bureaucratic as that all sounds, there are real-world impacts, human impacts. For one thing, the county’s decision to pay the legal expenses for the three commanders gave them a decided advantage over their courtroom opponents.
Mitchell suffered serious health issues amid the accusations and counter-accusations and subsequently took medical retirement from his sergeant’s position.
“This litigation has been hard on my family and me emotionally and financially,” Mitchell said via email. “I have had to adjust priorities to pay for the litigation while Joe Moses, Archie Warren and Mark Caldwell have not had to pay for representation. They have not paid for representation, and their statements to the media, the courts and investigators keep changing.”
Mitchell wrote that the County Counsel’s Office, District Attorney’s Office and especially the Sheriff’s Office should have done something to control the commanders.
“The Sheriff’s Office weaponized the Internal Affairs Division to silence dissenters,” he said, “and that bad behavior continues to this day.”
Schneider said, “The main thrust of the commanders’/county argument in the civil case involving is that they did not have a duty to investigate their claims because it was political speech.
This is why it matters that the county recognizes that they were in fact on duty and why they chose to hide this from the judge.
“Police officers do have a duty to investigate before alleging criminal behavior in California.
On-duty cops cannot just accuse people of crimes falsely and then later say ‘Oh, we were just campaigning.’ Think of the civil rights abuses that would occur if this goes unchecked.”
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