One plaintiff still fighting Monterey County sheriff’s brass

| CRIMINAL JUSTICE

By Royal Calkins

The defamation lawsuit that helped decide last year's contest for Monterey County sheriff has been partly settled but there could be plenty of action ahead.

Two of the three plaintiffs, sheriff's deputy Scott Davis and retired Sgt. Dan Mitchell, agreed last month to settle their slander case against sheriff's commanders Joe Moses and Mark Caldwell and retired commander Archie Warren.

Details are masked by a non-disclosure agreement but people connected to the matter say Davis and Mitchell are believed to be receiving small cash payments as well as relief from procedural penalties that were accrued early in the litigation. However, the third plaintiff, campaign consultant Christian Schneider, continues to pursue his case, one that appears to be stronger and less likely to be settled quietly.

Schneider, who is representing himself, has turned the lawsuit into a crusade, an opportunity to expose what he sees as a pattern of malfeasance within county government. He criticizes the county for helping to pay the commanders’ legal costs and failing to disclose county records that could help prove his case, an assertion denied by the County Counsel's Office.

The litigation stems from the sheriff's race of 2018, when the three commanders publicly and falsely accused Mitchell, Davis and Schneider of embezzling and laundering money from the Deputy Sheriffs Association. Moses and his co-defendants were supporting then-Sheriff Steve Bernal's successful re-election campaign against Davis.

Each of the commanders had been promoted by Bernal, who enjoyed their support despite his inexperience and overall weak performance in office. Though Bernal easily won a second term in 2018, he decided not to run again last year after the county Board of Supervisors publicly censured him for illegally spending taxpayer money to put on a private conference for all of California's county sheriffs.

Prosecutors elected not to file criminal charges against Bernal largely because sheriffs elsewhere had done the same thing, spending tens of thousands of taxpayer dollars on meals, transportation and the like. The practice continues around the state. Records obtained by Voices show that taxpayers in Tulare County unknowingly paid for numerous conference expenses, including snipers posted near the Visalia conference site while the state's sheriffs were gathered for the annual event.

In 2018, the commanders involved with Bernal's campaign violated a list of Sheriff's Department protocols by publicly accusing the other camp of felonies without any meaningful investigation, consultation with prosecutors or involvement by working detectives.The state Department of Justice quickly determined that there was nothing to the allegations. The Davis campaign never recovered but the litigation was launched.

Last year's sheriff's race began during a lull in the litigation. Moses was considered the early favorite, but former Los Angeles police captain Tina Nieto carried off a convincing victory after an appellate court injected new life into the case. The lawsuit had faltered in the Monterey County courts but was given new life when a Southern California appeals court ruled there was significant evidence that Mitchell, Davis and Schneider had been unfairly vilified.

Schneider's campaign consulting business all but collapsed because of the highly publicized accusations, and that could result in a larger judgment or settlement than what his associates received. The courts have ruled that while Mitchell and Davis were public figures for defamation purposes, Schneider is not. That means that while he still has to show that the allegations were bogus, he doesn't have to prove the commanders knew they were spreading falsehoods.

Schneider says he has presented a financial settlement offer to Elizabeth Leitzinger, the Monterey lawyer who represents Moses and Caldwell as well as Monterey County's interests. Leitzinger rejected his offer and is scheduled to conduct a pretrial interrogation of Schneider in the coming months. Meanwhile, Schneider has filed notice that he plans to question numerous local political figures.

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From the start, Moses and the other defendants enjoyed a clear advantage over the plaintiffs because Monterey County elected to cover their legal fees for reasons that have never been publicly explained. It was a big decision, with the county siding with management-level employees who were engaged in litigation against subordinates. Theoretically, Moses and his allies will be asked to repay the legal costs if a judge rules that they were off duty when they aired their allegations. However, the county has never presented that question to the courts.

Warren has since retired but Moses and Caldwell remain county employees. They are both assigned to the jail but Caldwell recently went out on medical leave and is expected to retire. Mitchell, a longtime leader of the deputy sheriffs’ union, retired after suffering a stroke shortly after he was falsely accused. Davis remains on the county payroll as an acting sergeant.

The county paid the legal expenses for the Moses group until last year's appellate decision. Up to that point, the case had received little attention from Central Coast media outlets except Voices of Monterey Bay. The appellate court decision led to a spurt of publicity, prompting the county to stop paying.

Schneider contends that by covering much of the legal costs, the county was essentially making contributions to the Bernal campaign. He argues that the Board of Supervisors should have been disqualified from voting on anything related to the litigation.

Schneider and Mitchell have complained that the county's decision to bankroll the defense gave the other side such an unfair advantage that taking the case to trial could prove impractical.

The County Counsel's Office has declined to reveal the amount of the legal fees on grounds of attorney-client privilege. County Counsel Les Girard also says that paying legal fees for the Bernal supporters did not amount to a campaign contribution. Girard said the county was obligated under state law to cover defense costs for the commanders. It isn't clear what would have happened if a Board of Supervisors vote on that issue had gone the other way.

The supervisors agreed to have the county cover the costs with only Supervisor Luis Alejo dissenting. Favoring the decision were supervisors Chris Lopez and Mary Adams and then-supervisors John Phillips and Jane Parker, who later acknowledged she had qualms about the decision. Supervisors Wendy Root Askew and Glenn Church weren't on the board at the time.

Moses and his co-defendants have declined to comment on that and other issues.

In Schneider's view, the county failed the public by declining to investigate the commanders’ actions.

Among the issues in the litigation is when Moses and the other commanders started delving into Deputy Sheriffs Association finances. The Moses side claims it did not have access to association financial records until mid-March of 2018 even though someone in the Sheriff's Department was sending out emails with that information as early as Feb. 5. One set of documents went to Monterey County Weekly on March 12, resulting in an accusatory article.

Schneider said the county "neglected its duty to conduct a thorough investigation" and thwarted his ability to gather additional information through public records requests and internal affairs complaints.

He also argues that county officials knew that the defendants made inaccurate claims in declarations to the court.

"Despite the mounting evidence that contradicts the allegations, the county has incurred significant legal expenses and prolonged the legal proceedings for over five years," he continued.

Over those five years, Schneider has filed a series of complaints with the state Fair Political Practices Commission, which lately has been clearing cases with warning letters rather than prosecution because of a giant backlog.

Ultimately, Schneider said, "the county's struggle lies within itself as it grapples with the need for accountability. Unfortunately, the consequences of these egregious acts have resulted in collateral damage, with the affected individuals bearing the brunt."

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