COMMENTARY |
By Royal Calkins
Someday, maybe, Monterey County officials will admit that they made some expensive mistakes when they chose sides in the 2018 sheriff’s election and the prolonged litigation it created.
For now, though, they seem to be hoping that their biggest critic on the subject will give up and take the issue away with him, but he has proved to be as persistent as hay fever or that barking dog on the next block.
The mistakes came in installments, several years of them.
First, back then, in the 2018 campaign for sheriff, Supervisor Chris Lopez and then-Supervisor John Phillips endorsed the incumbent sheriff, Steve Bernal, for re-election although he had done little or nothing to distinguish himself during his first term. Then, three Bernal operatives who were sheriff’s commanders — all of whom had been promoted by Bernal — publicly and repeatedly accused Bernal’s opponent, sheriff’s deputy Scott Davis, and two close associates of various felonies, including embezzlement and money laundering.
There was nothing to any of it, but the local media ate it up.
Making the accusations were commanders Joe Moses, Mark Caldwell and Archie Warren, all now retired. They wrongly accused Davis, sheriff’s Sgt. Dan Mitchell, and a political consultant working for the unsuccessful Davis campaign, Christian Schneider, the barking dog mentioned above.
Within weeks, the state Department of Justice cleared the Davis group. The damage had already been done by then, however, and Bernal went on to win a second term that was actually less distinguished than the first. (He gave up visions of a third term after the Board of Supervisors censured him for illegally using taxpayer money to host a convention for all the sheriffs in California.)
The wrongly accused trio from the Davis camp quickly filed a slander lawsuit against the commanders and for political reasons, county officials decided to cover the cost of the commanders’ legal defense, putting them at a huge advantage over the Davis group.
So why revisit this now, two election cycles later? Because despite the passage of time, another investigation has broken out. California’s principal campaign watchdog, the state Fair Political Practices Commission (FPPC), is investigating why and how Monterey County taxpayers paid the legal bills for the commanders and why laws about such payments were ignored.
The FPPC’s move is in response to the latest in a series of formal complaints filed by Schneider, the political consultant who has spent much of the past seven years trying to fight the county over the whole affair. You can find Schneider’s FPPC complaint here. (Not all the charges he raises are being taken up by the FPPC.) Here’s another Voices piece from early this year that might help readers decipher this lesson on how things aren’t supposed to work.
In an April 25 letter, the FPPC notified Schneider, the Board of Supervisors, six past and present county lawyers and several others that it will investigate some of the issues Schneider raised against the county and the former commanders, Moses, Warren and Caldwell. Some will remember that Moses went on to run unsuccessfully for sheriff in 2022, losing to the current sheriff, Tina Nieto, with the endorsement of two county supervisors.
County Counsel Susan Blitch, who received the FPPC letter, has not responded to two emails from Voices seeking a response and asking related questions. She did respond to a letter from the FPPC regarding Schneider’s complaints, saying just that the county had done nothing wrong. Schneider asserts, however, that Blitch should not be involved in the matter because she is one of the county officials he accuses of improprieties. He suggests the county hire outside counsel to sort things out. That is a grand idea that would allow the county to repair the damage that was done to Schneider, as well as to former Sgt. Mitchell, who suffered a career-ending stroke in the midst of the trumped up charges.
The FPPC is taking up issues surrounding the slander lawsuit, but not the actual details of the litigation. Davis and Mitchell settled with the plaintiffs last year but Schneider fought on for a time until he ran out of money. He actually had a much better case than his co-defendants because two courts had ruled that he had been defamed and that his case should go to trial. With Schneider unable to continue financing the lawsuit, Monterey County Judge Tom Wills dismissed it, ordering Schneider to pay some $60,000 over procedural issues, which hasn’t happened. By that time, Schneider was unable to find additional work as a political consultant — something he attributes to the defamation — and was struggling with health issues.
Based on correspondence between Schneider and the FPPC, it appears that the state agency wants to know why the Board of Supervisors voted 4-1 back in 2018 to use taxpayer money to pay the commanders’ legal expenses. County officials have given various estimates of the total cost, averaging about $160,000.
“The county interfered in an election by using public funds. That’s not in dispute,” Schneider said in an interview. “The County Counsel’s Office hasn’t been honest with the supervisors, the courts or with me. I’ve been put through hell while they tried to wear me down financially over time. That’s not justice. It’s corruption. It’s time the Board of Supervisors takes responsibility.”
The FPPC also wants to know why the commanders didn’t report payment of the legal fees as a gift. Sheriff’s Department managers, like elected officials and department heads, are required to file Form 700 reports each year listing gifts related to their jobs.
Les Girard, who was the county’s chief in-house lawyer at the time, said state law required the county to pay the legal fees. That’s not quite true, however. Section 995 of the state Government Code says agencies such as the county are required to pay legitimate legal expenses for employees being sued for actions taken as part of their official duties. In this case, that was not the case, no matter what the county administration claimed.
When the county started covering the bills, Commander Moses was in charge of the county jail and had no responsibility over investigations not involving the jail. The accusations against Davis and associates had notbing to do with the jail. If he was investigating Davis et al, he was doing it on his own time. The other commanders suggested during campaign news conferences that the accusations against Davis and others resulted from their own investigative work. However, while Caldwell and Warren supervised investigators, they were not assigned to do any sleuthing of their own, and investigators in their charge were not involved in investigating Davis, Mitchell or Schneider. Their allegations turned out to have no connection to their official duties — but the county bankrolled their defense anyway.
Voting to cover the commanders’ legal expenses were Supervisor Chris Lopez and three people who have since left the board — John Phillips, Jane Parker and Mary Adams. Lopez and Phillips had both endorsed Bernal in 2018 and Moses four year later, which, according to Schneider’s complaints to the state, created a conflict of interest that seems likely to be reviewed by the FPPC. At the time, Supervisor Phillips was clearly the kingpin of the board, with county officials regularly doing his bidding. Like Bernal, Phillips is a Republican in a mostly Democratic county and, like Bernal, he was good at dipping into GOP pocketbooks for campaign support.
Then-Supervisor Parker later told a staffer that she had voted to pay the bills only after being assured the commanders would be required to reimburse the county for the legal expenses if it was ever determined that they had not been doing their actual jobs when they launched their accusations. The county administration had created a fiction. That became more and more clear as the case progressed through the local courts and the appellate court. The county has never made any effort to collect the money, however.
Schneider later established that then-Supervisor Adams had voted with the majority out of kindness after being lobbied by a member of her office staff, a relative of Commander Warren. The staffer told Adams that paying his own legal expenses would devastate Warren and his family, which was going through severe medical issues. Adams asked the County Counsel’s Office if voting to pay the legal bills would put her in a conflict-of-interest position. She was told there was no reason she couldn’t vote.
And, Schneider has repeatedly pointed out, if state law required the county to cover the legal expenses, why was it necessary for the supervisors to vote on it? Supervisor Luis Alejo, who remains on the board, cast the one no vote.
Soon after the appeals court ruled in Schneider’s favor, the Board of Supervisors voted to stop footing the attorney fees for the commanders but apparently made no effort toward getting the taxpayers’ money back.
The county then issued a statement, one that it should have issued years earlier: “The Board of Supervisors has determined that, in its opinion, the defendants were not acting within the court and scope of (their) employment, and have therefore determined that the county will no longer be providing them a defense. … If a jury trial or other fact finder concludes that they were acting within the course and scope of employment, the defendants will be able to seek reimbursement of their defense costs from the county.”
Girard had told Voices more than once that if it was determined that the commanders had not been acting in their official capacities, the county would press to have them repay the county. That never happened. He said it would have happened only if a judge or jury had come to the same conclusion. They were never asked.
To represent the commanders, the county hired Monterey County’s most prestigious law firm, Fenton & Keller, even before taking the matter to the supervisors. The firm is led by attorney Chris Panetta, son of former Peninsula Congressman Leon Panetta and brother of current Congressman Jimmy Panetta. The firm had regularly represented county government and many of the county’s top institutions.
The county had also paid the firm to represent then-Sheriff Bernal when he came under criminal investigation for illegally using county money for a sheriffs’ convention that featured lots of golf, firearms demonstrations and free local transportation for the sheriffs and their spouses. Much of the work at the convention was performed by sheriff’s officials and deputies whose timecards falsely indicated that they had worked those hours in the jail.
For reasons that have never been made public, Fenton & Keller gave the commanders significantly discounted fees. Schneider says he understands that one of the FPPC’s interests is determining why the discount wasn’t reported as a contribution to the Bernal and Moses campaigns.
Schneider also says that based on his reviews of county payment records, it appears that some of the legal costs covered by the county may have been incurred as part of an unrelated case, one involving the Monterey County Deputy Sheriffs’ Association.
Schneider complained to the FPPC that in the Deputy Sheriff’s Association lawsuit and the defamation litigation, the county paid lawyers to file anti-SLAPP motions against the opposing parties. (SLAPP stands for strategic lawsuits against public participation.) Generally, county governments aren’t supposed to do that, but the county seems to have done quite a few things it shouldn’t have.
Schneider recently started a blog on record producer and free speech activist Howie Klein’s Down With Tyranny website. In it he details his battle with the county and the toll it has taken on him. He writes that he hasn’t been able to find consulting work since the commanders went on the attack, that he has been diagnosed with PTSD and has been living in cheap motels. He includes a link for readers to contribute to his cause.
In one post he wrote that the county joined with the commanders not to win in court but “to punish me.”
“To stretch the process over years,” he wrote. “To drain my resources and my mental health. To make the experience so painful, so isolating and so expensive that I’d stop fighting. And all of it — every escalation —– was funded by Monterey County taxpayers.”
Schneider has regularly written to supervisors and spoken up during public comment periods at supervisors’ meetings. One supervisor said recently, off the record, that “Christian has worn out his welcome.” Even so, the county should cooperate with the FPPC, and county officials who played a role in tilting the playing field should stay on the sidelines and let the facts speak for themselves. And, in the meantime, the supervisors would be wise to hire a special counsel to figure out how things went so wrong. The current board isn’t to blame, but the board that created the mess certainly isn’t going to fix it.
Information has been added to this article since it was first published on May 14.
Enlarge
Have something to say about this story? Send us a letter or leave a comment below.
SUPPORT NONPROFIT JOURNALISM 
GET OUR FREE WEEKLY NEWSLETTER
