One side in Moses-Mitchell defamation case got a head start State law says non-financial conflicts are OK

| CRIMINAL JUSTICE

By Royal Calkins

Monterey County Supervisor Mary Adams faced a dilemma. She wanted advice about whether she and the other four supervisors should get involved in an important court case, the one accusing Joe Moses and other Sheriff’s Office officials of defamation.

Adams wasn’t keen on having the county cover litigation expenses for Moses’ side, but was also worried about the lawsuit’s impact on the family of one of her key employees. To sort it out, she turned to the county’s legal and administrative staff.

What they told her helped put the county in the middle of a legal dispute that is still playing out five years later at significant financial and political expense to the county, though there wasn’t really any overriding reason for the county to participate.

This is about the defamation lawsuit between opposing political factions in the county’s Sheriff’s Office, but it’s also about how county government works — and who ends up paying the bills for the government’s actions.

Adams’s personal conflict involved her employment of one litigant’s sister-in-law. It was first raised publicly at recent Board of Supervisors’ meetings by campaign consultant Christian Schneider, a litigant on the side that didn’t get any help from the county. Schneider said Adams should have recused herself from the original vote to pay the bills for the one side in a lawsuit involving two sets of county employees and from subsequent votes related to the continuing litigation. He also argued in front of the board that supervisors Chris Lopez and Luis Alejo also should be conflicted out for a variety of reasons.

Schneider also suggested during a recent court hearing that documents he is being required to produce in the lawsuit could expose several area political figures to unexpected and possibly unfair scrutiny, mostly involving campaign funding. He mentioned Democratic Congressman Jimmy Panetta of Carmel and Chevron Oil, which was distributing campaign money while fighting the local anti-fracking ballot measure.

“I had a lot of clients,” Schneider told Voices.

Back to the litigation and Adams.

It was 2018. Moses and two other commanders were being sued for defamation in connection with that year’s sheriff’s campaign. Moses didn’t want to pay his own legal bills, so he approached county officials and asked that the county pay the fees for himself and the other two defendants, commanders Mark Caldwell and Archie Warren. Remember that second name.

The county, like other government agencies, routinely covers costs for employees facing legal action stemming from their official duties. But there was little evidence that Moses and his colleagues were on duty when they held news conferences to level unsupported accusations at sheriff’s candidate Scott Davis and two associates. At the time, Davis was a sheriff’s deputy, a member of the Salinas City Council and the only candidate opposing incumbent Sheriff Steve Bernal.

Moses and the commanders were big Bernal backers but didn’t mention that when they publicly accused Davis, then-Sgt. Dan Mitchell and Schneider of embezzling and laundering money from the deputy sheriffs’ union.  The state Department of Justice quickly found that the allegations were to unsupported to warrant investigation. Even so, they were hefty allegations that helped Bernal win the election.

Voices has written extensively about the case and other issues in the Sheriff’s Office. 

If Moses and his colleagues had been acting as law enforcement, it would have been highly unusual — and perhaps illegal — to make such accusations openly before any real investigation had taken place.

In closed session back then, County Counsel Les Girard and then-County Administrative Officer Charles McKee asked the supervisors to allow the county to pay the legal fees and promised that Moses and allies would be asked to repay the county if a court found that they had not been acting in their official capacities, according to sources. The lawsuit has been in front of several judges at the superior and appellate court levels but none has been asked to weigh in on that topic either way.

Even now, lawyers for the county cling to the notion that it wasn’t clear what roles the three commanders were playing.

The county eventually cut off funding for the Moses team’s defense last year, after an appellate court ruled that the Mitchell-Davis-Schneider side had an open-and-shut case of defamation that should go to trial. That generated some steam for the plaintiffs but the relative lack of resources didn’t allow them and their Salinas-based lawyers to proceed vigorously. As a result, Mitchell and Davis reportedly have agreed to settlement amounts in the low five figures.

Despite what was reported earlier in a Voices article, their settlement hasn’t been completed quite yet, largely because of confusion over the extent of the county’s involvement. At one point, the county was going to essentially contribute to a settlement but officials feared that would make the county more of a litigant and less of an interested observer.

Schneider is continuing to litigate the case, but is unrepresented at the moment, compromising his chances of winning a significant settlement or judgment.

How much of an advantage did the Moses side receive from the county?

Huge, says Schneider.

“The county orchestrated a distortion of what should have been recognized as abuse of power and underhanded political tactics, camouflaging them with an illusion of legitimacy,” Schneider said. Instead of paying the legal bills, the county should have thoroughly investigated the actions of Moses and his confederates, he added.

Instead, he continued, county officials “chose to impede and ultimately suppress internal affairs complaints that could have resolved the matter years ago.”

As soon as Davis, Mitchell and Schneider filed their defamation suit in 2018, the County Counsel’s Office arranged for the county’s main outside counsel to represent the commanders. Fenton & Keller, arguably the best (and best-connected) law firm on the Peninsula, even agreed to discount their fees. Was that because the firm wanted to be nice to a major client or was it to help the Bernal campaign? That’s a question to which no one has provided a clear answer.

Usually when the county is asked to pay for a county employee’s legal representation, the department head does the asking. In this case, that would have been Bernal. But it was Moses who took the request to the county.

Adams was new to the board at the time. The most powerful of the five supervisors then was John Phillips, who also enjoyed the role of political kingmaker for the local GOP. He endorsed Bernal over Davis, as did Supervisor Chris Lopez. Phillips has retired from the board, but Lopez remains.

With Supervisor Luis Alejo and then-Supervisor Jane Parker considered unlikely to do what the commanders wanted, Adams realized she was probably the swing vote.

But there was her dilemma.

Each of the supervisors has a staff of assistants, including an executive assistant. Adams had hired Susan Moore as her executive assistant, Schneider learned recently. Moore had been working in the County Counsel’s Office as a legal secretary.

More significantly, Moore was Archie Warren’s sister-in-law. Former Commander and co-defendant Archie Warren.

Sadly, Moore’s younger sister, Cmdr. Warren’s wife, Leslie Anne Warren, was fighting a relentless cancer while the supervisors were pondering. That obviously created a giant strain for the family, compounded by the defamation suit. Mrs. Warren, 55, who had been involved in distributing information critical of the defamation plaintiffs, died days before Christmas of 2018. Her husband retired from the Sheriff’s Office shortly afterward.

Because of her assistant’s relationship to the Warrens, Adams went to the county staff for advice.

She was told there was no reason she couldn’t vote.

County Counsel Girard, the county government’s lead lawyer, recently explained that conflicts of interest only prevent supervisors from voting if the matter personally affects them or close family members financially.

It’s a terribly narrow opinion, but it is taken directly from California law, which ignores moral and ethical conflicts. The state once had a broader definition of impermissible conflict. It changed when an appeals court held that the public works director in a Southern California city couldn’t be convicted of bribery when he arranged for a city contract to go to one of his subordinates. The court reasoned that the public works director didn’t personally profit from the contract, so he had done nothing wrong.

Unfortunately for the public, most California politicians now play politics with few rules on conflicts of interest. As the Monterey County board has shown in recent years, a supervisor can vote on contracts involving close friends and even business partners as long as none of the county money ends up in his or her pocket.

Phillips and Lopez were quick yes votes for paying the lawyers. Supervisor Luis Alejo voted the other way, saying he thought the county had no place helping one side.

Supervisor Jane Parker struggled with her decision. She agreed with Alejo, but the county staff convinced her otherwise by promising that Moses, Caldwell and Warren would be asked to repay the county if a judge found that they had been operating as political functionaries.

Parker said months later that the official explanation was confusing but she didn’t have enough information to deflect the staff recommendation. If Parker had decided to vote against the plan, that would have made Adams the swing vote.

In a recent phone interview, Adams agreed that she was essentially the deciding vote.

“I did what I thought was best,” Adams said in a recent phone interview. Asked if she regretted her vote, she had no comment. She added that she hopes a settlement can be reached with all the plaintiffs.

After the 4-1 vote, a board proclamation limited payments to Fenton & Keller at $10,000, an amount that appears to have been surpassed before the board even voted on the matter. Over time, with additional board votes, the amount would grow to more than $160,000, plus the cost of significant county staff time.

Meanwhile, Schneider is the last remaining plaintiff. He is now engaged in responding to the other side’s requests for documents and other information. Among the items requested are an accounting of his previous clients. Schneider was involved in running Davis’s unsuccessful campaign, Bernal’s initial campaign in 2014, a Dennis Donohue supervisorial campaign, and Bill Lipe’s Assembly campaign, during which Schneider persuaded authorities to prosecute GOP candidate Neal Kitchens for lying about his legal residence.

Schneider told Judge Tom Wills via Zoom that he was reluctant to turn over the document because it could invade the privacy of numerous clients, but the judge ordered him to produce the paperwork.

Schneider has said that the accusations from the commanders ruined his political consulting business. He has spent much of the intervening time researching corruption issues locally and filing complaints with the state Fair Political Practices Commission. He has told the supervisors that he hopes to reach a settlement so he can leave the area. If the litigation proceeds, he says, he plans to send out interrogatories, court-sanctioned requests for information, to a long list of figures involved in Monterey County politics, business and journalism.

Have something to say about this story? Send us a letter or leave a comment below.

SUPPORT NONPROFIT JOURNALISM

GET OUR FREE WEEKLY NEWSLETTER