MOORLACH CAMPAIGN UPDATE — It’s Election Day — November 6, 2018

Today is November 6th and it’s election day in Orange County, California and the nation. Don’t waste this opportunity to participate in your God given right to vote.

If you have not voted yet, and you need a last minute assist, go to my complete all-inclusive voter guide at MOORLACH CAMPAIGN UPDATE — All-Inclusive Voter Guide — October 24, 2018. It also has links to the focused subject matter voter guides that I’ve provided over the past few weeks.

If you live in the OC and need any voter information, including polling places or election night results later this evening, go to the Registrar of Voters’ website at For California, go to the Secretary of State’s website at

Thankfully, this is my last Campaign UPDATE for this two-year election cycle. Allow me to focus on one race. A contest where I’ve decided to stay neutral.

After some 23 years in public service, I’ve worked with and known both Supervisor Todd Spitzer and District Attorney Tony Rackauckas for a long time. Now they are running head-to-head for the elected office of District Attorney, after making it to the top two in the June Primary.

I did not endorse in the Primary, suggesting that either one would be a good second choice (see MOORLACH CAMPAIGN UPDATE — June Primary Antics — April 28, 2018).

So, let me do a little soul searching and lay it out as best as I can. Let’s start with the incumbent. Speaking as a former department head, Tony Rackauckas has been a miserable manager of a large department. Without going into all the gruesome details, like Grand Jury reports criticizing his managerial efforts from the get-go, I’ll provide a few examples.

For me, the Dekraai mass shooting in Seal Beach was a classic slam dunk. But, because of the now famous snitch scandal, the survivors of Mr. Dekraai’s victims saw the death penalty taken off the table and will not see justice. This is tragically ironic, as Rackauckas is a strong advocate of the death penalty (something he just couldn’t seem to skillfully articulate in a public setting).

If you debated the costs of pursuing the death penalty during the Great Recession, which I did while serving as a County Supervisor in an era where 1,000 employees were laid off, Tony determined that I must be anti-death penalty and accused me of such. So much for seeking the true facts; something a prosecutor is required to do.

I shared my frustrations shortly after being elected to the State Senate (see
MOORLACH UPDATE — Day Two — March 26, 2015)

With the Dekraai case tangled in the informant battle, the trial to decide his punishment could be delayed more than a year, frustrating victims’ families – and at least one locally elected official.

“How do you mess up a case like this?” asked former supervisor John Moorlach, whose district represented Seal Beach. “It’s unconscionable.”

The Dekraai case reverberations would make it to the Legislature and I would make my frustration known on the Senate Floor (see MOORLACH UPDATE — Prosecutor Accountability — October 4, 2016).

Another sad episode was Tony Rackauckas’s charging of then OC Assessor Webster Guillory with felonies for a minor error in signature gathering for Guillory’s re-election efforts, the error was made after numerous appeals Mr. Guillory received to run again at the last minute. It would significantly damage his re-election efforts. But, the winning candidate was a political ally of Tony’s through a fascinating web of relationships. The charges would eventually be reduced to misdemeanors, but it would be too late (see MOORLACH UPDATE — $117B Unrestricted Net Deficit — January 9, 2015).

If you can stretch the rules yourself, you’re probably not going to prosecute other politicos. Shirley Grindle found this to be the case (see MOORLACH UPDATE — Shirley Grindle — July 19, 2015).

When one of my former Chiefs of Staff, a law school professor, publicly hinted that he would consider running for DA, you knew that there were concerns (see MOORLACH UPDATE — Alumnus DA? — June 11, 2017).

We would next see the incumbent announce he was rerunning to somehow repair his tarnished reputation (see MOORLACH UPDATE — DA Doubts — July 9, 2017).

Then we would hear from Supervisor Spitzer, who has made becoming the Orange County District Attorney a life-long pursuit (see MOORLACH UPDATE — Surprise! — July 11, 2017).

Within literally minutes, the fun began, giving me a chance to provide a short history lesson on the office of OC DA (see MOORLACH UPDATE — DA Drama — July 12, 2017).

But, replacing an incompetent DA with someone who also is lacking in managerial skill sets is troubling. I mentioned this concern in MOORLACH UPDATE — DA Doubts — July 9, 2017, which includes the following quote:

“The thought of Todd running for D.A. has been the biggest boon to Tony,” said state Sen. John Moorlach (R-Costa Mesa), who said he doesn’t see either man as fit for the office. “Tony should not be D.A. anymore. He should not have been D.A. for a long time.”

And I recently criticized Supervisor Spitzer for manipulating the homelessness issue by fear mongering and grandstanding on the sensitivities of Orange County’s residents in dealing with this difficult concern (see MOORLACH UPDATE — Inside OC, Part 2 — May 7, 2018).

How’s that for a brutal assessment of this choice?

Incumbents win 90% of the time, so Tony Rackauckas should ordinarily be fine in holding his seat. But, if that win comes with a very small margin, it should wake him up. The question is: Can you wake up someone at this stage in his life and career? Or maybe the question should be: Why should we wait for you to fix the tarnished reputation of Orange County’s District Attorney’s office after you were the major reason for it occurring?

You’ll get a Republican by voting for either one of the candidates. But selecting one over the other is the biggest conundrum OC voters have to deal with today.

For another perspective on this race, the Voice of OC chimes in with its piece below. It also had an editorial submission over the weekend (see MOORLACH CAMPAIGN UPDATE — It’s Time to Vote — November 4, 2018).

Rackauckas and Spitzer Face Off Tuesday in DA Election Showdown


OC Supervisor Todd Spitzer is running head-to-head against District Attorney Tony Rackauckas for the DA’s job Tuesday, in one of Orange County’s most closely-watched races.

The face-off, years in the making, pits Rackauckas against his former heir apparent. The two had a very public falling-out in 2010, have feuded ever since, and the race is considered to be highly competitive.

Spitzer was about 3 percentage points behind Rackauckas in the June primary, and split the non-incumbent vote with two other challengers. Spitzer has spent more than twice as much campaign money as Rackauckas: $2.2 million to Rackauckas’ $984,000.

However, Spitzer’s spending and name recognition is far from a guarantee of winning. Incumbents traditionally have a strong built-in advantage to hold onto office, and Rackauckas has built a base of support among elected officials and business owners.

Whoever wins will lead the county prosecutor’s office, which has more than 850 employees and handles more than 60,000 criminal cases each year. The office has about 260 prosecutors and 120 investigators.

Both candidates have been elected officials in OC for decades, and their reputations are well-established.

Rackauckas was first elected DA in 1998, and over the last several years his office has faced accusations of cronyism and misconduct, especially as a number of criminal prosecutions were derailed by illegal misuse of jailhouse informants, known as the “jailhouse snitch scandal.”

A unanimous appeals court ruling found DA prosecutors systematically violated the constitutional rights of defendants through an illegal informants network, and failed to turn over evidence that was favorable to the defense, as required by law.

Illegal use of informants in Orange County has so far resulted in reduced or thrown-out charges in at least seven criminal cases – including one where a gang member facing two murder charges walked free – and potentially affected a dozen more cases.

In the prosecution of mass murderer Scott Evans Dekraai, a judge barred the entire DA’s office was from prosecuting the case and later threw out the death penalty – a decision upheld on appeal.

Law enforcement actions in the OC informants scandal are under investigation by both the California Attorney General’s Office and the U.S. Department of Justice.

Rackauckas has pushed back at criticism, pointing to a controversial Orange County Grand Jury report that dismissed the allegations of systemic informant abuse as a “myth” perpetuated by the media and the public defender’s office. The grand jury report did not discuss the unanimous appeals court ruling from seven months prior that had found systemic misconduct by the DA’s Office and Sheriff’s Department.

Rackauckas and his chief of staff, Susan Kang Schroeder, are under state investigation for allegedly accepting illegal undisclosed gifts of private jet travel from billionaire Henry Nicholas, according to an Oct. 29 letter from the state’s Fair Political Practices Commission. Nicholas was arrested in Las Vegas in August on suspicion of drug trafficking after police found heroin, meth, cocaine, and ecstasy in his hotel suite.

Rackauckas and Schroeder’s lawyer has said they did travel on Nicholas’ plane, but that the gift limit does not apply because of an exemption in state law for travel to speeches regarding legislative or governmental matters.

Spitzer previously worked for Nicholas, though the two had a falling out years ago.

One of Spitzer’s defining moments in office was when he handcuffed a Christian preacher at a Wahoo’s Fish Taco restaurant in 2015 for allegedly staring at Spitzer and a nearby table knife.

A sheriff’s deputy who responded to the incident said the knife on the table was a butter knife. A Wahoo’s employee told the deputy Spitzer decided to handcuff the preacher because he kept looking at Spitzer.

Spitzer disputed the description of the knife, saying it was a steak knife and that his actions were necessary to protect himself and others.

When news of the incident became public, Spitzer tried to send out a county-funded statement claiming he would have been justified to use deadly force against the preacher because table knives were nearby.

“Police officers are trained not to allow anyone either armed with a knife or ready access to a knife to come within 10 feet,” Spitzer wrote in the statement he wanted to send out. “Use of deadly force is justified under those circumstances.”

His proposed statement was titled, “I WILL NEVER TURN MY BACK ON THE PUBLIC OR ITS SAFETY.”

The county’s chief spokeswoman at the time, Jean Pasco, urged Spitzer not to send it out and warned it could expose the county to legal liability. Spitzer ended up not not sending out the statement.

Spitzer and his fellow supervisors fought the public release of the statement and emails, but Voice of OC sued under the state’s Public Records Act and after a year-plus court battle, a judge ordered the county to disclose the records. The supervisors spent over $120,000 in county taxpayer money trying to block the records’ release.

In the DA’s race this year, Spitzer has spent thousands of dollars on mailers and campaign ads focusing on the informant scandal and other allegations against Rackauckas, hoping to convince voters he would lead an honest and accountable prosecutor’s office.

Rackauckas, in turn, has invested in ads alleging Spitzer is “unstable,” “unhinged,” and asking people if they “have experience with him demanding campaign donations in exchange for official actions.”

Rackauckas’ ads level a specific claim about Spitzer’s mental health: that he failed multiple police psychiatric exams – an apparent reference to allegations about Spitzer’s time as a reserve police officer in the 1990s.

In text messages Friday, Spitzer said the psych exam clams are simply not true, and that he “never” was told he failed such an exam. What’s more, Spitzer said, he has been issued a concealed weapon permit and was brought back to the DA’s office in 2008 by Rackauckas himself.

“I have absolutely no mental illness whatsoever,” Spitzer wrote. “They know they’re going to lose on Tuesday and they’re going to lose badly and they are literally grasping at straws.”

One of Spitzer’s defining features is his ability to get his name and face onto TV news, which has been considered helpful for his name recognition in running for DA. His colleagues on the Board of Supervisors have taken notice.

“We would always warn people, when they came to the county [headquarters], to be careful not to be between Supervisor Spitzer and a TV camera, because you were guaranteed to be run over,” said state Sen. John Moorlach (R-Costa Mesa), who served with Spitzer on the county Board of Supervisors, in a March podcast about Spitzer’s appearance at a Costa Mesa City Council meeting outside his district.

Moorlach laughed, adding: “So I would maybe also think twice this June when you…cast a vote for District Attorney.”

Among Spitzer’s highest-profile appearances were connected to controversies this spring over proposed homeless shelters in Costa Mesa and Laguna Niguel. Spitzer went to City Council meetings in those cities, which are outside his district, to warn residents of the dangers of homeless people.

In public comments before packed meetings, Spitzer labeled homeless people as “sex offenders,” even though there was one convicted sex offender among the several hundred homeless people in motels at the time who could have been eligible for the shelters.

And sex offenders would not have been allowed at the proposed shelters, according to county officials.

Spitzer was in a position, in the month between the first discussion of the shelters and when they were publicly proposed, to ask his colleagues to prohibit convicted sex offenders at the shelters, as the county does with its Bridges Kraemer shelter in Anaheim. Spitzer apparently did not do so, and went on to cite the risk of sex offenders in his warnings to residents.

Supervisor Lisa Bartlett, who represents Laguna Niguel and other south county cities, has said Spitzer engaged in “fear mongering” when he went to the Laguna Niguel meeting in her district.

In response, Spitzer said at the time: “The fact of the matter is, I have every right to express my point of view throughout this county on particular issues, especially when it affects my votes.”

The winner on Tuesday will have a four-year term leading the DA’s office. The final result may not be known for days, given the large number of ballots that voters mail in close to and on Election Day.

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda.

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