By Royal Calkins
Even many who closely follow Monterey County politics will be surprised to learn that three sheriff’s commanders are still locked in litigation with the opposing camp from Sheriff Steve Bernal’s re-election campaign of four years ago.
A panel of appellate court justices in Southern California heard oral arguments Monday in the case that has meandered through the court system, largely at county expense.
The commanders — Joe Moses, a current candidate for Monterey County sheriff, Mark Caldwell and Archie Warren, since retired — are accused in the civil lawsuit of defaming Bernal’s 2018 opponent, Scott Davis, along with Dan Mitchell, then president of the Deputy Sheriffs Association, and Davis’s campaign consultant, Christian Schneider.
In press releases, anonymous emails and news conferences, the commanders falsely accused the Davis team of embezzling from the Deputy Sheriffs Association, the union representing sheriff’s deputies, and laundering money through Schneider’s company.
The commanders aired most of their accusations while on duty and though they subsequently acknowledged that they were acting principally as political operatives, the county has paid their legal expenses, providing them with a giant advantage over the other side. County officials won’t say how much that has cost the county because the amount is protected by attorney-client privilege and disclosure is not compulsory.
Within days of the news conferences heavily covered by the Monterey County press corps, state Department of Justice agents investigated the allegations and cleared Davis, Mitchell and Schneider of any criminal wrongdoing. By then the damage had been done, however, and Bernal waltzed to an easy victory. Davis, who still works for the Sheriff’s Department as a deputy, would have been the first Asian and openly gay sheriff in California.
In a recent Q&A feature in Voices, Moses said as part of his sheriff’s campaign that he would do the same thing today under similar circumstances.
Even if the commanders had been conducting a legitimate investigation, it would have been extremely uncommon for active law enforcement officers to hold a news conference to announce their allegations in a public setting before running them past their superiors and county prosecutors.
The case is before the state 4th District Court of Appeal after the trial court judge in Monterey County, Susan Matcham, ruled that Davis and Mitchell could not proceed with the defamation action because they were public figures at the time. In the landmark case of New York Times v. Sullivan, the U.S. Supreme Court ruled that public figures could not collect damages in defamation cases unless they could prove that the parties making false and libelous accusations had acted with actual malice, meaning that they knew or should have known the allegations were false but aired them anyway.
Matcham ruled, however, that Schneider was not a public figure since he was a mostly behind-the-scenes campaign consultant. With scant explanation, she also ruled that Schneider could not proceed with his case on his own because it would be impractical for him to proceed without the other plaintiffs.
Matcham, and the judge in a companion case, also ruled that the three commanders were not functioning as county employees but as political operatives.
The appellate court panel and the attorneys spent no time on that aspect Monday. Instead, the justices got fairly deeply into the question of who knew what when — when the commanders first had access to financial information that they labeled evidence of criminality versus when they said they first saw the material.
Moses testified that he received the pertinent financial information from the union’s bookkeepers on March 19, 2018, but evidence indicates he had it on or before Feb. 12. It matters because having had earlier access undercuts the commanders’ position that they didn’t have time to thoroughly examine the records before staging their media briefings. It also would seem to undercut their assertion that they didn’t know who had first raised the allegations in anonymous emails to some 300 Deputy Sheriffs Association members well before March 19. They later argued that it should have been obvious that they were the source.
Moses was out of state on Monday and Tuesday, but said he would check his records upon his return.
With the primary election set for June, Moses appears to be the clear favorite in the current sheriff’s election even though he was closely tied to Bernal during the current sheriff’s deeply troubled terms in office.
Bernal was the subject of an unprecedented censure by the Board of Supervisors after investigations by Voices of Monterey Bay and the District Attorney’s Office turned up evidence of irregular and possibly illegal use of taxpayer money to put on a convention for all California sheriffs. He also remains under investigation by the state Fair Political Practices Commission for other matters, including undisclosed use of a former county supervisor’s guest house as a rendezvous site for an affair with an underling. He remains in office but is not seeking re-election.
For some time, Moses ran the sheriff’s aviation squadron, which involves private airplane owners providing planes and pilots for the department’s use. Unlike many other California counties, the Monterey County department has not kept records of the purpose of various flights, the passengers or the destinations. Bernal, a pilot, has made considerable use of the operation for trips to conventions and elsewhere.
During the run-up to the 2018 election, Moses’ main role was to run the county jail, beyond which he had no investigative function. Even so, he has said he felt he had a duty to officially investigate finances of the union that had endorsed Davis’s campaign. He and the other commanders had been members of the Deputy Sheriffs Association but the union ousted them and other managers above sergeant as the campaign heated up.
It was Moses who did most of the talking when the commanders went on the offensive. He told the cameras that he and his colleagues had uncovered documents indicating the Davis campaign had embezzled $30,000 from the union with the help of Schneider and Mitchell.
In an interview hours after the initial news conference, Moses told a reporter that Bernal had instructed the commanders to stop identifying themselves as Sheriff’s Department officials, which undercuts the claim that they were conducting official business.
Moses has raised significantly more money than the other four candidates in the current sheriff’s race, including the one considered to be his strongest challenger, Marina Police Chief Tina Nieto. And though he is receiving support from Bernal and other Republicans in the county, he is running as a Democrat,
Moses was won over numerous professionals in the social services by promises to expand mental health services in the jail and to increase the department’s crime-prevention role.But with the general public more interested in response times and a deputy’s union more interested in boots on the street, delivering those promises could prove problematic. Supporters of other candidates argue that sheriff candidates often promise to expand mental health services but follow through only to the extent needed to certify mental patients as competent to stand trial.
The other candidates are Del Rey Oaks Police Chief Jeff Hoyne, retired sheriff’s Commander Jose Mendoza and deputy Justin Patterson, who has accused Moses of political hypocrisy by essentially campaigning as a progressive Democrat. Voter registration in the county is heavily Democratic.
The primary election is on June 7 and a runoff will be held in November if no candidate receives more than 50 percent of the vote. Perhaps significantly, the appeals court has until June 19 to decide on the arguments presented Monday.
Thus far, the legal case being examined by the appeals court has not been a campaign issue at all, in large part because it has received virtually no attention from any media outlets other than Voices. Most of the news operations, including Voices, presented fairly breathless accounts of the initial accusations raised by Moses and associates. Each dutifully reported on the state’s investigation clearing the Davis camp but only Voices has delved into the litigation and related issues as they have unfolded.
Generating questions from the appellate panel Monday was the issue of what damages the plaintiffs might be entitled to if the appeal leads to a trial. The county’s chief lawyer on the case, Fenton & Keller’s Liz Leitzinger, argued that Mitchell and Davis had not suffered any financial harm though Mitchell sustained a stroke shortly after the allegations were broadcast and was forced to retire.
Leitzinger said Schneider has argued that the accusation cost him consulting business but he has not presented any evidence. Susan Powell, the lawyer for Schneider’s side, replied that the time for presenting and arguing over damages comes at the end of a defamation case, not the beginning.
Schneider had been a traveling campaign consultant before the Bernal-Davis race but he has worked sparingly since. He says the heavily publicized accusations have caused numerous potential employers to shy away from him.
Leitzinger also argued that Schneider had not been defamed because the commanders never actually accused him of wrongdoing. She is contradicted by court papers and media accounts showing that the commanders accused Schneider of illegally laundering embezzled union money.
Leitzinger also argued that there was no actual malice, or reckless disregard for the truth, since the defendants had no way of knowing the information they were spreading was false.
Powell countered, “The defendants were on-duty police officers making serious allegations.” They knew that legitimate investigations of other department employees would likely involve Internal Affairs, discussions with prosecutors, interviews and audits. Instead, she said, they went straight to publicly accusing subordinates of crimes in a manner that would suggest to the voting public that the matter had been thoroughly investigated.
Schneider has remained on the Central Coast, working on the litigation and filing a series of complaints accusing Bernal, county supervisors John Phillips and Chris Lopez and others of violating state campaign law. All have denied wrongdoing. Some of his complaints have received little public attention because the perpetually underfunded state Fair Political Practices Commission often takes years to investigate even routine matters.
Among the unresolved issues raised by the legal conflict is the county’s decision to pay attorney fees for Moses, Warren and Caldwell. After hiring the prestigious Fenton & Keller firm to represent the trio, county officials received Board of Supervisors’ approval to pay the fees. The board was told that Moses and the others would be asked to reimburse the county if the court found they had aired their accusations as private citizens rather than as law enforcement officials with an obligation to investigate a suspected crime.
In court papers, the commanders and their lawyers have tried to have it both ways, arguing both that the accusations amounted to private political posturing, protected by the First Amendment, and that they had acted under the cloak of authority, which would immunize them from litigation.
County Counsel Les Girard said Monday by email that a decision to seek reimbursement from the Moses group would be triggered by a court ruling or jury ruling to the effect that they had acted as private parties.
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.
“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 said last year. “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.”
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FEATURED IMAGE | Justices William W. Bedsworth (left), Thomas M. Goethals and Laurie D. Zelon, sitting for the 4th District Court of Appeal, listen to arguments Monday in the case of Dan Mitchell et Al v Joe Moses et Al.