Sheriff’s Capt. Joe Moses seeks to have appellate decision overturned Also, ex-chief of deputies association accuses county of complicity

| LAW AND ORDER

By Royal Calkins

Monterey County sheriff candidate Joe Moses and two allies are asking the state Supreme Court to toss out a defamation lawsuit filed by three men they had falsely accused of embezzlement and money laundering.

The unsupported allegations were aired four years ago while sheriff’s Capt. Moses and commanders Archie Warren and Mark Caldwell were supporting Sheriff Steve Bernal’s successful re-election campaign.Their targets were sheriff’s deputy Scott Davis, who was Bernal’s opponent in 2018, Davis campaign consultant Christian Schneider and then-Sgt. Dan Mitchell, president of the law enforcement union that was supporting the Davis candidacy.

Joe Moses

The state Department of Justice quickly determined the accusations weren’t worth pursuing but the attack was successful, helping Bernal hold onto his seat. In some ways it was a repeat of the campaign trickery that some of the same players had used four years earlier to help Bernal knock off incumbent Scott Miller.

In a new damage claim filed with the county last week, Mitchell, now retired, reported that the Moses team had asked the Salinas Police Department to investigate the embezzlement and money laundering allegations but Police Chief Adele Fresé declined, saying the assertions were clearly political.

The defamation lawsuit had been dismissed by a Monterey County judge but was reinstated last month by a Southern California appeals court that found Moses and associates may have crossed the line between protected free speech and irresponsible slander. That’s an issue for a judge or jury to settle, three appellate court justices agreed.

Appealing that ruling to the Supreme Court on Monday, Moses and associates argue that their accusations amounted to mere political hyperbole in the midst of a campaign, which would make it constitutionally protected free speech. Their lawyer, Elizabeth Litzenberger, said the defamation action also should be tossed out because the landmark U.S. Supreme Court case of Sullivan v. New York Times holds that public figures cannot win defamation cases unless they can show that their accusers knew or should have known the accusations were false.

Davis and his co-defendants reject that argument on grounds that the Moses group was not acting as a political advocate at the time but as police officers airing criminal allegations without any real investigation and without even questioning the people they were accusing of criminality.

As the case has wound through the legal process, Moses and associates have contradictorily argued that they were merely political partisans at the time or law enforcement agents with a statutory duty to investigate possible crimes. Moses, however, was commander of the jail with no role in investigating potential crimes outside the jail. And even if they had been acting under the color of authority, going public before any significant investigation would have violated numerous professional protocols. Nonetheless, Monterey County officials chose to pay their legal expenses until shortly after the appellate court ruling. 

As part of his current campaign to replace Bernal, who is not seeking re-election, Moses has said he would do the same thing again.

Schneider offered Thursday, “After all the conflicting statements Moses has given, the only thing we know to be true is that he lies.” 

Moses didn’t respond to emails to his home or office.

Before the case was appealed to the high court, Schneider and the other plaintiffs were  seeking a financial settlement, which might have proved embarrassing to Moses in the midst of his sheriff’s campaign.The new appeal seemingly pushes that back into the summer. The election is June 7. 

“They are just kicking the can down the road till after the election,” Schneider said.“If the Board of Supervisors has now figured out that the defendants’ actions while on duty were not within the scope of their employment, why have they not been held accountable?” He also alleged that the county had “buried” internal affairs complaints that they were obligated to pursue.

Chances of the Supreme Court hearing the appeal seem remote. The high court takes up only about 5% of appeals it receives and even fewer challenges of unpublished opinions, such as this one. Also hurting Moses’ chances, the appellate decision reinstating the case was unanimous. 

“If the standard laid out in these cases is allowed to persist,” Litzenberger wrote in the new filing, “statements about potential criminal conduct by a political candidate — the most fundamentally protected speech in our nation — will regularly give rise to extended defamation litigation and political critics will be silenced as a result.”

Litzenberger didn’t offer any alternatives for what candidates for public office might do instead of sue if a sheriff or other candidate falsely accuses them of a crime.

Schneider, the campaign consultant, noted, however, that the California Constitution actually forbids the use of defamation and even “whisper campaigns” in political campaigns.

County supervisors John Phillips and Chris Lopez have endorsed Moses while supervisors Mary Adams and Luis Alejo are endorsing Marina Police Chief Tina Nieto. The other candidates are Del Rey Oaks Police Chief Jeff Hoyne and sheriff’s deputy Justin Patterson. Supervisor Wendy Root Askew, who led the supervisors in censuring Bernal for inappropriate spending, has not endorsed.

In his new claim, filed with the county last week, Mitchell seeks compensation for damages inflicted on him by the lawsuit defendants and several others, including Bernal and other past and present Sheriff’s Office officials including Undersheriff John Mineau, Jim Bass, Kevin Oakley and John Thornburg, County Administrative Officer Charles McKee, County Counsel Les Girard and assistants Susan Blitch and Irv Grant, and District Attorney Jeannine Pacioni and assistant Berkley Brannon. Brannon, who is in charge of investigating campaign wrongdoing for the DA’s Office, has endorsed Moses, which Mitchell views as an obvious conflict.

Mitchell was president of the deputy sheriffs’ union during the 2018 campaign. He suffered a stroke shortly after being accused by Bernal’s team and left the county on medical retirement soon after. In his new claim, which could pave the way for another lawsuit, he elaborated on allegations in the defamation case.

He says Moses and the other defendants were on duty when they began looking into union finances and disseminating confidential personnel documents.

He wrote that Warren was on duty when he sent out an anonymous email maligning the political opposition. He noted that he and the union filed an unfair labor practices lawsuit against the county and that Judge Marla Anderson ruled more than a year ago that they were likely to prevail.

“‘Judge Anderson asked Charles McKee why he was involved in the (unfair labor practices) case because Moses, Warren, and Caldwell said they were off duty and speaking as concerned citizens’  when they aired the false accusations,” Mitchell wrote. “That case has not been settled over three years later. The county has been subject to sanctions in the case, and the case is still not resolved.”

Mitchell said he believes Bernal and underlings Mineau, Bass, Thornburg and Oakley were part of a plot to wreck the Davis campaign and that the county was complicit for not disciplining any of them.

“There is no way that the lack of action … could not be construed as tacit approval” of the Moses group’s action,” Mitchell wrote.

“Also, I have evidence that Steve Bernal and John Thornburg have had inappropriate relations with the news media to include disclosure of confidential information for political purposes. …  In fact, Steve Bernal, John Mineau and John Thornburg may have a quid pro quo relationship with several members of the news media that enables them to control the

direction of a story. My private personnel records were leaked to the media in efforts to discredit and defame me.”

Mitchell said he and Schneider contacted the District Attorney’s Office several times with evidence of wrongdoing, political and otherwise, “and they have so far refused to follow through.” He said the state Department of Justice should be brought in to investigate those failures and other actions by county officials that appear to be covert and illegal efforts to help Bernal remain in office. He argued that county government had essentially become a political action committee working first for Bernal and later for Moses.

| Featured photo: Stock Adobe

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Royal Calkins

About Royal Calkins

Contributing writer Royal Calkins has worked for newspapers in Santa Cruz, Monterey and Fresno. For the past couple of years, he has produced a local news and commentary blog, the Monterey Bay Partisan. He can be reached at calkinsroyal@gmail.com.

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