No Justice Yet for Republican Assembly Candidate Falsely Accused of Sexual Harassment During 2018 Election

Philip Graham was systematically cheated out of a fair election — and an Assembly office — by a woman many believe was put up to accuse him of sexual assault. Graham was falsely accused of inappropriately grabbing and kissing Nichole Burgan against her wishes in a local bar, right before the 2018 primary election. The media and his opponents immediately ran with the allegations, despite Ms. Burgan’s constantly changing story.

Only political operatives with deep pockets and deeper connections could have pulled this off, it would seem. Despite Graham being found innocent of the assault charges and exonerated by the San Diego County Sheriff, robocalls and mailers went out that contained the accusations.

The dubious sexual assault allegations against Phil Graham assured his Democrat opponent a road to victory.

Despite being exonerated, Graham was also cheated by California’s Fair Political Practices Commission and the Secretary of State.

#MeToo, #BelieveAllWomen

In 2018, the #MeToo movement was a constant in the news. #BelieveAllWomen was the Democrat and feminist rally cry during the confirmation hearings of Supreme Court nominee Brett Kavanaugh, also falsely accused of sexual assault.

The California Legislature was plagued with its own sexual harassment issues in 2017-2018 with a half-dozen Democratic lawmakers accused of serious sexual harassment and assault claims. Two of the credibly accused lawmakers still hold public office in the Legislature. Several others were run out of the Capitol and payouts went to their victims.

However, the investigations into charges of sexual harassment and abuse by lawmakers inside the California State Capitol brought about a deafening silence from the Legislature’s Women’s Caucus.

Currently and ironically, Tara Reade’s recent sexual assault allegations against Democratic Presidential Candidate Joe Biden are being denied by Biden, Democrats, feminists and most of the media.

But Biden called for a delay on Supreme Court nominee Brett Kavanaugh during the confirmation hearings, after Christine Blasey Ford accused the judge of physically and sexually assaulting her at a high school party.

No Justice for Graham

The behavior by those trying to defeat Graham was so outrageous that the Federal Communications Commission, which has jurisdiction over inappropriate and illegal usages of telecommunications devices, found that “Kenneth Moser, doing business as a telemarketing enterprise under the name Marketing Support Systems (Moser), apparently made 47,610 unlawful spoofed calls over the course of a two-day calling campaign. Moser apparently spoofed the phone number assigned to another telemarketing company, HomeyTel, Inc., to transmit a prerecorded voice message containing false statements critical of California State Assembly candidate Philip Graham. … Given the egregious circumstances, we propose a forfeiture of $9,997,750.”

The extraordinary $10 million sanction shows that the FCC may be serious about enforcing laws against campaign shenanigans.

“Somebody or some group should be very worried,” said Phil Graham, the Republican who was the leading candidate for the San Diego 76th Assembly District in 2018.

Graham, who is the stepson of former California Gov. Pete Wilson, was the favorite for the Assembly seat before the conveniently timed allegations of sexual assault spread like wildfire, thanks to that series of 47,000 robocalls days before the primary election and printed hit pieces.

California Globe has had numerous discussions with Phil Graham about what happened in 2018.

We covered the formal complaint he filed with the Federal Communications Commission, and complaints to the California Fair Political Practices Commission, the California Secretary of State, as well as the Public Integrity Unit at the U.S. Department of Justice in January.

The Assembly district, which had previously been considered a safe Republican seat, was won by Democrat Tasha Boerner Horvath in 2018, with the support of San Diego Democrat Assembly members Lorena Gonzalez and Todd Gloria, and several labor unions.

Graham submitted a 22-page complaint to the FCC against telemarketer Ken Moser in connection with Moser’s efforts to mislead voters with those approximately 50,000 robocalls containing fraudulent and false accusations against Assembly candidate Phil Graham.

The San Diego County Sheriff  investigated and closed the case. It issued a statement not just saying it couldn’t prove Burgan’s allegations but that it had actually disproven them: “After conducting a thorough investigation, interviewing several witnesses and reviewing video surveillance from both inside and outside of the business, detectives disproved the allegations made against Mr. Graham,” the Sheriff’s department said in a statement. “As a result, this case is being closed as unfounded, pending any new or additional information.”

Nichole Burgan was criminally charged, ended up pleading guilty to the false allegations, but served only two days in jail, despite a history of restraining orders filed against her that accused her of filing false reports, the Coast News reported.

The question requiring an answer is, “Who put her up to it?” Graham said if whoever put Nichole Burgan up to the untrue #MeToo accusations of sexual abuse, and the subsequent advertisements and robocalls, gets away with this, “They will do it again.”

Oddities About the Case

California Globe contacted Jerome Stocks, another Republican candidate in the 2018 Assembly race, because Voice of San Diego reported Burgan called Stocks after the false assault and told him about the incident. But VOSD reported Stocks didn’t remember if he told her to call the police or not.

California Globe asked Stocks:

The Voice of San Diego reported Ms. Burgan spoke to you after she alleged her allegations.

Can you tell me the reason she called you and what else she said?

Mr. Graham filed complaints with the FPPC, the FEC and DOJ. Have you been contacted by any of these agencies?

Stocks replied back in an email:

“I do not recall. Best of luck with your history project,” he said.

Stocks was not helpful. It is curious why Bergan called him after she leveled the false sexual assault accusation against Graham.

Where are the investigations?

Graham and his attorneys filed a complaint with the California Fair Political Practices Commission, which responded June 18, 2018, acknowledging his complaint, and saying they would investigate the matter. And that was the last Philip Graham heard from the FPPC – nearly two years ago.

The mission of the Fair Political Practices Commission “is to promote the integrity of state and local government in California through fair, impartial interpretation and enforcement of political campaign, lobbying and conflict of interest laws.”

California Globe called the FPPC to ask the status of the investigation, and never received a return call.*

As for the Secretary of State, California Globe called and asked why the election continued even though it was evident there was legal tampering/influencing, and a conviction.

No calls were returned.

“The Secretary of State’s office is comprised of nearly 500 people who are dedicated to making government more transparent and accessible in the areas of elections, business, political campaigning, legislative advocacy, and historical treasures,” according to the SOS.

Graham’s attorneys attempted to stop the Democrats, political PACs and labor unions from using the false charges in campaign materials. In a May 18, 2018 letter to the Political Action for Classified Employees (PACE) Committee, they warned: “Any such material distributed by you would constitute actionable defamatory speech, and unequivocally would not enjoy any First Amendment protection.”

PACE of California School Employees Association spent $60,993.63 in three expenditures May 29 – 31, 2018 for mailers, “paid phones” and “research for paid phones.” (See below: list of Independent Expenditures)

Attorneys for the California Labor Federation responded:

Nor does the fact that the Sheriff’s investigation has now been completed render the materials defamatory. The allegations were in fact made and an investigation was undertaken, just as CLF’s materials state. However, please be advised that as the investigation into Mr. Graham’s conduct has now been closed, CLF will not refer to the investigation in any other campaign materials sent out after CLF received notice of the completion of the investigation. This is because CLF believes in truth and accuracy in such matters.”

The SEIU paid $10,760 for text messaging and phone banking June 1-June 3, 2018. And SEIU California State Council Political Committee paid $25,086 for a mailer May 24, 2018. (See below: list of Independent Expenditures)

With the California FPPC and Secretary of State ignoring this obvious fraud, as well as ignoring the FCC fine, the U.S. Department of Justice can and should launch an investigation. If the outcome of a hot political race can be predetermined with only a false allegation against the Republican, a $10 million fine is apparently a worthy investment.

Philip Graham’s attorney Brian T. Hildreth, a Partner of Bell, McAndrews & Hiltachk, LLC wrote in a letter:

We are calling for the Public Integrity Unit at the U.S. Department of Justice to launch their own investigation to determine if other individuals and/or groups were involved in this fraud and election tampering.  We stand ready to assist the USDOJ in any way necessary.

As the FCC noted, the calls took place about one week prior to the primary election for the California State Assembly, 76^th District.  The calls made false and deceptive allegations about Mr. Graham.  The allegations had already been investigated and disproven by the San Diego County Sheriff’s Department.  The California Secretary of State referred a complaint about the matter to the FCC’s Enforcement Bureau, which investigated, resulting in today’s proposed fine.  The calls unquestionably had a devastating impact on Mr. Graham and his candidacy for elective office.

The Truth in Caller ID Act prohibits manipulating caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value.  In addition, to finding that Moser apparently violated the Truth in Caller ID Act, the Commission’s Enforcement Bureau found separately that Moser sent more than 11,000 prerecorded voice messages to wireless phones, without consent, in violation of the Telephone Consumer Protection Act’s (TCPA).

While there has rightly been a significant focus on election interference at the national level, we respectfully ask that the USDOJ apply the same level of scrutiny at the state and local level to prevent any new illegal acts.

*Jay Wierenga, Communications Director with the FPPC responded to our article:

“I have checked the email and available phone records in my office, which handles media requests, calls, and media relations in general. I can find no record of any calls or emails regarding this from you or anyone from the California Globe. If there has ever been a non-returned call, I would and have apologized in the past,for it is my/our policy to always return a call or email inquiry. But there is no record of any such contact.”