Eleven retired Cal Fire firefighters and peace officers have resubmitted a citizens’ complaint against Tuolumne-Calaveras Unit Chief Josh White and several others over their handling of the 2007 Moonlight Fire investigation that resulted in the agency being ordered to pay more than $32 million in sanctions.
The group addressed the complaint dated March 24 to Cal Fire Director Ken Pimlott after the California Supreme Court denied the agency’s request to review the case and depublish an appellate court’s ruling affirming the sanctions that were handed down by Plumas County Superior Court Judge Leslie C. Nichols in February 2014.
They say that White, who served as lead investigator on the 2007 fire prior to becoming the Tuolumne-Calaveras Unit chief in 2013, should be demoted or fired because Nichols’ decision stated he lied under oath about his findings related to the origin of the fire.
Nichols’ decision also stated Cal Fire employees and the Attorney General’s Office hid or destroyed evidence, including the existence of a “slush fund” that 2013 state audit determined to be illegal. The fund has been deactivated.
White, declined to comment on the retired firefighters complaint.
“There haven’t been any charges of perjury filed against me and I’d refer you to Sacramento to discuss this,” White said.
Pimlott strongly defended White’s character in a telephone interview with The Union Democrat on Wednesday and said Cal Fire’s legal counsel, Bruce Crane, was in the process of preparing a response to the complaint.
“It’s unfortunate that these former employees, who do not have firsthand knowledge of the Moonlight case, have the opportunity to comment and quite frankly malign an employee of Chief White’s caliber,” he said. “He’s a unit chief with significant standing with Cal Fire.”
Pimlott said he would still take the case to trial based on White’s investigation and supporting documents if given the opportunity.
“The case was never tried on its merits and, trust me, we have the utmost confidence or else we would not have taken this case,” he said. “These are merely attempts to discredit investigators in a case that was obviously very high profile.”
The scandal stems from a civil lawsuit filed in 2009 by Cal Fire and the state Attorney General’s Office against timber giant Sierra Pacific Industries and a contractor, whom state and federal officials blamed for starting the fire.
Federal officials initially sought nearly $1 billion in damages and attorney fees from SPI for the fire that burned 65,000 acres, about 45,000 of which were public lands north of Lake Tahoe in the Plumas and Lassen National Forests.
SPI agreed to settle the federal case in 2012 for $55 million and give 22,500 acres to the government.
Cal Fire, meanwhile, sued SPI in Plumas County Superior Court for more than $8 million in firefighting and investigation costs.
In a separate order, Nichols blasted Cal Fire’s investigation and prosecution of the case as “corrupt and tainted” and that the agency “engaged in a systematic campaign of misdirection with the purpose of recovering money from the Defendants.”
“That was the opinion of the judge and not the opinion of Cal Fire, nor the attorney general for the state of California who was bringing this forward,” Pimlott said. “It’s unfortunate that the state of California didn’t have the opportunity to try the merits of the case in court.”
It was also the majority opinion of a three-judge panel in the state’s Third District Court of Appeal on Dec. 6 last year that affirmed Nichols’ decision to impose compensatory sanctions and rejected Cal Fire’s request for a new judge.
Judge Ronald Robie wrote a dissenting opinion that stated he believed Nichols was not fair and impartial in much of the earlier proceedings.
The appellate court ordered the lower court to reverse the monetary sanctions that were imposed on Cal Fire and hold further proceedings to determine an appropriate amount, which is still being discussed.
Pimlott said either Cal Fire or the state as a whole will be responsible for paying the final sanctions to SPI and the other defendants.
SPI is looking to get back the $55 million settlement it made with the federal government in 2012 and earlier this year filed a petition for the U.S. Supreme Court to review the case, after the Ninth District Court of Appeal denied the company’s request.
The Supreme Court has yet to make a decision.
Tom Hoffman, a former Cal Fire peace officer who retired in June 2009 after 23 years with the agency, said he’s part of the group of retired employees who filed an initial citizen’s complaint to the agency in 2014 against White, retired Cal Fire peace officer and consultant Alan Carlson, consultant Dave Reynolds, and other employees whose names were not known and were involved in the Moonlight Fire investigation.
Cal Fire Senior Staff Counsel David L. Wiseman responded to the group’s original complaint in September 2014 with a letter stating that decision in the Moonlight case was being appealed and any independent investigation conducted by the agency would be redundant.
Wiseman stated that the agency would take “appropriate separate action” if the litigation ultimately revealed employee misconduct after the lower court’s decision was final, which is why the group resubmitted their complaint after the state Supreme Court denied Cal Fire’s request for review.
“Well, now the litigation has run its course,” Hoffman said. “We want to bring this back to the forefront.”
Hoffman said he wants to see White either demoted or terminated because he believes the administrative legal record has “proven without a doubt” that White committed perjury and unethical behavior.
“My concern as a retired peace officer is that his actions sully the reputations of current and retired Cal Fire enforcement officers,” Hoffman said. “As such, it also generally undermines the public’s confidence in state government.”
The group and 10 attorneys general from across the U.S. have filed supplemental briefs in support of the federal Supreme Court taking up SPI’s request for a refund of its $55 million that it agreed to pay as a settlement when it was facing nearly $1 billion in damages.
Hoffman said that, as a taxpayer, he’s also irked the state could wind up spending more than $30 million for trying to recover $8 million in fire suppression costs.
Terry Mackey, a retired Cal Fire captain who retired in 2004 after 31 years with the agency, said he signed the complaint because he’s also concerned about the credibility of the state government.
“State government is in a precarious situation as it is, and the more these kinds of things happen it just paints everybody with a negative brush,” he said. “If you don’t nip it in the bud and take it out, then the public has no reason to trust you.”
Bill Warne, of the Sacramento-based law firm Downey Brand, is SPI’s lead attorney in the case and said Cal Fire will have to make the decision about what, if anything, happens to White or the others who Nichols chastised in the 2014 decision.
“Those opinions and conclusions found that this investigation was corrupt and tainted from the start, and that my client was targeted along with other defendants for reasons that had nothing to do with the actual facts,” Warne said. “What’s important to understand here is that the court, which is a neutral arbiter of what actually occurred, has reached final conclusions about what happened, and Cal Fire must focus and act on those conclusions.”
Contact Alex MacLean at email@example.com or (209) 588-4530.