Nichole Burgan told the Sheriff’s Department that Phil Graham touched her inappropriately at the 1st Street Bar in Encinitas. Deputies later determined that never happened. / Photo by Jamie Scott Lytle
Nichole Burgan told the Sheriff’s Department that Phil Graham touched her inappropriately at the 1st Street Bar in Encinitas. Deputies later determined that never happened. / Photo by Jamie Scott Lytle

It sounds like a vision from a far-right fever dream: A woman falsely accused a businessman of sexual misconduct to handicap his candidacy, and the lie was amplified by labor groups and a Mexican company. But it really happened.

In the early hours of May 14, Phil Graham sat in the 1st Street Bar in Encinitas, a roadside dive across the street from his condo, and chatted with a woman. Sunday had disappeared into Monday, with the California primary about three weeks away.

As the stepson of Pete Wilson, a former San Diego mayor, U.S. senator and California governor, Graham was considered a serious contender for the 76th Assembly District seat, long held by Republicans like himself. He’d previously run for the Encinitas City Council and lost.

The woman was Nichole Burgan, a lifeguard known in coastal North County for bringing a specially trained Labrador retriever on searches and rescues. She was first thrust into the spotlight in 2007 by tragedy when a small plane carrying her mother, sister and stepfather crashed off the coast.

As the night wore on, the two talked politics. Burgan mentioned that her friend, Republican Jerome Stocks, was running for the 76th Assembly seat against Graham.

Sometime over the next week, Burgan would call Stocks. They’d known each other since the late 1990s and their children had been friends in high school. But they’d lost touch until Stocks launched his campaign and she reached out to say she’d seen his yard signs.

“That’s fantastic,” Stocks remembers her saying.

This time, she had more than well-wishes to offer.

Graham, she said, had inappropriately touched her at the 1st Street Bar. Stocks remembers asking her several times, “Did that really happen?” and she responded, “He was so drunk he couldn’t sign his credit card statement.”

Burgan was re-approaching Stocks at a precarious point in his political career. He’d previously served on the Encinitas City Council but he was having a difficult time raising money for his Assembly bid because his old donors were now backing Graham. The San Diego County Republican Party had also given Graham its support.

Stocks loaned his campaign $22,500, but that only went so far. In April, his consultant walked away and by May his campaign had essentially disintegrated.

Burgan decided to tell Stocks what happened between her and Graham in the bar that night because, as she later explained to me, “he was running against him and I was like, ‘Do you know this douchebag?’”

Burgan declined to say anything more about her reasons for contacting Stocks, and he’s fuzzy on the exact date of the call. He said he doesn’t remember if he encouraged her to go to the police with her story. Instead, he asked her if she was OK, he said, and then got back to work running his insurance agency.

On May 20, a little less than a week after their encounter in the bar, Burgan told the San Diego County Sheriff’s Department that Graham had grabbed her by the hair, pulled her close and forcibly kissed her after she’d declined his advances. Within hours, word began to spread to the media that Graham was under investigation.

Before filing her report, Burgan shopped her story around. She gave the case number to the Coast News, which first reported it. According to 10 News, she was prepared to go on camera until her attorney killed that idea. Burgan also gave the TV station the impression that Gloria Allred, a feminist lawyer and icon who took on high-profile sexual harassment cases long before #MeToo, was working on her behalf.

Graham denied the allegation and called it an act of “dirty campaign politics.” His team — unable to raise money and preparing to save the money it did have on legal bills — huddled in place while the Sheriff’s Department investigated.

Almost immediately after news of the Graham investigation broke, Burgan’s credibility was thrown into question.

There were variations in her story. She told NBC 7 that Graham had grabbed her hand and forced it onto his crotch — a detail missing from previous interviews. She explained the discrepancy by citing a recent car accident.

Then Coast News reporters ran her name through civil and criminal court databases and found nearly a dozen restraining orders, some filed by her and some against her. Most were connected to her ex-husband and women who subsequently dated him. One of those women alleged in 2016 that Burgan had filed false reports with police and Child Protective Services to harass her family.

The Coast News also found that as recently as January 2018, Burgan had accused an ex-fiancé of imprisoning and battering her. A judge initially granted a restraining order, but later dismissed it for lack of evidence.

Citing witness interviews and surveillance video, the San Diego County Sheriff’s Department concluded on May 29 that Burgan’s claim wasn’t just “unfounded.” It had been “disproved” by detectives.

Yet, even though Graham had been cleared of wrongdoing, political ads describing Burgan’s accusations kept coming.

“We deserve better,” said a woman in one of several Facebook ads targeted exclusively at women. It ran May 30, one day after the Sheriff’s Department publicly closed the case on Burgan’s allegation, and it was paid for by a political action committee sponsored by the California Labor Federation, AFL-CIO, and backing Democrat Tasha Boerner Horvath.

A mailer funded by the public-employee union SEIU also encouraged Republicans to reconsider their endorsement of Graham and stop attacking Boerner Horvath, who was considered the strongest challenger.

The most explicit of the digital ads targeting Graham were eventually pulled from Facebook. But consultants working with labor groups continued to run new ads pushing voters to a website that insinuated Graham was dangerous. It made vague references to a “troubling allegation.” If anyone was interested in knowing more, a quick Google search would do the trick.

A political action committee sponsored by the California Labor Federation, AFL-CIO, directed women to a website vaguely suggesting that Republican candidate Phil Graham was dangerous, even though the San Diego County Sheriff’s Department had publicly cleared him of wrongdoing the day before. / Screenshot from Facebook ad archive
A political action committee sponsored by the California Labor Federation, AFL-CIO, directed women to a website vaguely suggesting that Republican candidate Phil Graham was dangerous, even though the San Diego County Sheriff’s Department had publicly cleared him of wrongdoing the day before. / Screenshot from Facebook ad archive

But that was tame in comparison to what came next.

“Creepy alert,” said a woman on the other end of a robocall that hit phones on May 30. She cited press coverage of Burgan’s allegation, and asked why Graham was out harassing a woman when he should have been at home sleeping.

“Vote carefully on June 5,” the caller said. “We don’t need any more creeps in Sacramento. Don’t vote for Phil Graham. #JustSayNo.”

Then came the disclaimer: “Paid for by Jennifer Jones.”

But Jennifer Jones, it turns out, isn’t real.

Someone had crossed the line between nasty campaigning and illegal behavior — by concealing their identity through a Mexican company.

The calls appeared to come from the Ensenada, Mexico-based HomeyTel Network, which provides internet services and voice broadcasting through a 619 number on the U.S. side of the border. But its founder, Conrad Braun, has adamantly and consistently denied that he made or authorized the robocalls. Under penalty of perjury, he contends that someone spoofed his name and number, making it look like he was behind the political smear.

Telemarketers do this all the time — by mimicking a number similar to your own so you’re more inclined to answer — and the Federal Communications Commission is taking steps to make the trick harder. But it takes on a new level of seriousness when the intention is to undermine the democratic process and sway an election.

Braun had no way of knowing that somebody had used his phone number and name until the angry messages started rolling in. He estimated he got more than 100 complaints from annoyed residents in the 76th Assembly who’d received the anti-Graham robocalls.

“It was a mess,” Braun said. “Whoever wanted to rock-and-roll my day accomplished their task.”

He also got a cease and desist letter from an attorney working with Graham, demanding that he stop disseminating false and defamatory information. Braun said he was happy to help in any way he could to find the true source of the robocalls.

“This creep needs to be stopped,” Braun wrote to the attorney on May 31.

With the cooperation of HomeyTel, Graham’s legal team petitioned several government agencies, including California’s secretary of state, the Fair Political Practices Commission and the Federal Communications Commission, to unmask the culprit by tracing back the original source of the robocalls. State investigators responded within hours and had begun collecting evidence from Braun by the time voters headed to the polls on June 5.

The FPPC’s investigation is ongoing. The FCC declined to comment for this story.

This was not the first time someone spoofed a HomeyTel number to interfere in the political process. In an affidavit, Braun told state investigators that he was previously a victim of disguised robocalls during the 2016 Encinitas mayoral race.

Here’s the transcript of one such call, which alluded to the city’s new urban farming rules allowing for temporary fruit, flower and vegetable stands:

Baaah Baah cluck cluck (chicken sounds)

(a male voice says)

“Can’t even tell you how that would smell! Next door to you. Really? Call Del Mar lawyer and Encinitas candidate Catherine Blakespear at her Del Mar law offices. Tell her that’s one idea that’s for the birds!”

(more chicken sounds)

All of this might have remained hidden from public view if Graham didn’t have the means and incentive to keep pursuing the source of the robocalls, thanks in part to his famous stepfather’s connections.

“Interference of this nature that actually affects the outcome of an election is very serious,” said Sean Walsh, a veteran political consultant who worked for Wilson and former Gov. Arnold Schwarzenegger and is now assisting Graham’s legal team. “This should get maximum attention because if it can happen here in California it can happen elsewhere.”

Less than two weeks after the primary, the San Diego County district attorney charged Burgan with filing a false police report, a misdemeanor. She’s set to go on trial in February.

That was news to her. Burgan told me in December that she hadn’t spoken with her deputy public defender since October.

Our interview didn’t last long. Burgan answered only a couple questions before hanging up. But before she did, she stood by the version of events she gave the Sheriff’s Department on May 20, and she noted that she’s a registered Democrat.

When all the ballots were counted in the 76th Assembly District primary, Graham finished in third place, about 4 percent, or 4,400 votes, behind Boerner Horvath and another Democrat, Elizabeth Warren, out of about 110,000 votes total.

Republicans were stunned. Graham dropped out of public life and has declined all attempts to hear his side of the story until after the investigations are completed.

The GOP Gets Locked Out

Whether she intended to, Burgan set in motion last year a political pile-on of epic proportions. One of the tamer advertisements near the end of the primary campaign was underwritten by labor groups but struck at the bipartisan messaging at the heart of the race’s final days: “Vote for anyone but Phil Graham.”

Demographics are changing in coastal North County, and it seems clear in retrospect that a Democrat was always going to win. But by how much is still debatable.

The California GOP considers the 76th Assembly District a priority in the 2020 election and plans to invest accordingly.

“It’s definitely a seat we feel like is winnable again,” said Matt Fleming, the state party’s communications director.

In the 76th District, there are now more Democrats than Republicans and nearly as many registered independents. Previously, voters had sent Republican Rocky Chavez, a retired Marine colonel with a moderate streak, to Sacramento. Disillusioned by Trump’s GOP, some white-collar conservatives in suburban parts of California are fleeing the party.

Progressives think Graham never had a chance, regardless of the 11th hour accusation of sexual misconduct. He campaigned hard against the state’s sanctuary policies and in favor of the gas tax repeal, which failed.

The California Republican Party was so confident that Graham would compete in the general election that it produced a mailer encouraging Democrats to vote for Warren, whom they considered the weaker of the candidates on the left. She finished the primary in first place. It’s possible that if Republicans hadn’t focused so much energy on attacking Boerner Horvath in the spring, she would have taken the top spot, leaving enough daylight for Graham to sneak through.

A mailer produced by the California Republican Party in the 76th Assembly District primary in 2018 encouraged voters to choose Democrat Elizabeth Warren over Tasha Boerner Horvath. / Photo courtesy of Derek Humphrey

“They got greedy by trying to pick which Democrat they got to run against in the fall,” said Derek Humphrey, who consulted for Boerner Horvath’s campaign. “It was a monumental failure of strategy, which helped to ensure that two Democrats advanced to the runoff.”

Boerner Horvath went on to comfortably win the general election by nearly 10 percentage points.

Indeed, blowing up Graham’s chances of getting through the primary required some effort on the right. Five other Republicans appeared on the June 5 ballot. Party leaders called on the others to step aside and only Brian Wimmer, a businessman who was struggling for name recognition, obliged.

If almost any of the major contenders had dropped out and helped direct their votes to him, Graham would have likely gone on to the general. There’s a good chance he would have lost there, too.

Yet the overarching narrative surrounding this election — that anti-Trump anger fueled a blue wave — doesn’t quite explain what happened in the 76th District. Yes, the district flipped from red to blue. But it wasn’t the president who served as Graham’s undoing.

Jesse Marx is Voice of San Diego's associate editor.

Leave a comment

We expect all commenters to be constructive and civil. We reserve the right to delete comments without explanation. You are welcome to flag comments to us. You are welcome to submit an opinion piece for our editors to review.

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.