Chiselers Smith & Colfax Denounce Grand Jury
by Mark Scaramella, May 14, 2008
The Grand Jury's careful documentation of travel reimbursement abuse by Supervisors Kendall Smith (Fort Bragg) and J. David Colfax (Boonville) brought angry denunciations from both Smith and Colfax last week.
Smith made her case on the KZYX Community News. In response to uninformed questions from KZYX's tip-toeing Paul Hansen, the regal Smith, who looks like she stepped out a Masterpiece Theater epic with a haughty demeanor to match, made a series of demonstrably false assertions, including, she claimed, that the Grand Jury had "ignored" the Clerk of Board memo on the subject of her overcharges.
The Grand Jury hadn't ignored the memo. They'd disagreed with it. The Clerk of the Board herself, in turn, told the Grand Jury that the County Auditor hadn't complained about Smith's attempt to ding the taxpayers for public money she wasn't entitled to, so what was the problem? The Clerk of the Board's letter is posted on the Grand Jury's website and is specifically disagreed with by the Grand Jury in their report. But what we have is the Supervisor's subordinate signing off on the supervisor's travel claims, and those claims automatically ratified by another county office, the county's timid auditor. Small wonder there's abuse.
Smith, who always manages to sound offended at the slightest challenge, said the Grand Jury also "ignored" the memo of the District Attorney's decision not to file criminal charges.
In fact, The DA's contorted refusal to bring charges is also posted on the Grand Jury's website and specifically disagreed with in Grand Jury's report. The Grand Jury pointedly cites the State Penal Code: "...the grand jury may order the District Attorney of the county to institute suit to recover any money that, in the judgment of the grand jury, may from any cause be due the county." But the District Attorney, politically and socially connected to Smith, refused to pursue the order from the Grand Jury to get the money back.
Supervisor Smith told KZYX's properly deferential Hansen that the Grand Jury's report "contained nothing new."
It did contain something new, the fact that Ms. Smith didn't pay back the money she said she'd pay back, among other things.
Smith said the Grand Jury is "not neutral, not balanced."
The Grand Jury was, it seems, finely balanced — until it caught Smith and Colfax taking travel money they're not entitled to.
Continuing to rattle off one whopper after another to Hansen, who's new to Mendocino County and seemingly new to the world of pure guile and naked self-interest, Smith, invoking the local liberal's preferred pejorative, the majestic "appropriate," said "it's not appropriate" for the Grand Jury to look into these things because they are "self-appointed" and "not competent" to examine the supervisor's travel reimbursements.
In fact, the Grand Jury is required by law to look into misappropriations of public funds.
The Fort Bragg-based supervisor denounced that Grand Jury for what she said was its "political" hostility for her, implying that because she's running for re-election the Grand Jury hoped to undermine her political prospects with the charges.
The initial report revealing that Smith was chiseling on her reimbursements was released last year by the previous Grand Jury.
As to the assertion that the report is politically motivated, Grand Jury Foreman Dennis Scoles of Redwood Valley respectfully disagrees.
"This had nothing to do with politics," Mr. Scoles insisted last week. "I don't know how that would be. We did not allow any political activity in the Grand Jury chambers. Our normal processes were used. When you get 19 citizens to agree on anything it's obviously not political. In fact," added Scoles, "we really had to tone it down to get everyone to agree. We also ran it all by Judge Henderson before it was released and he is very fair and measured in his positions."
Mr. Scoles also pointed out that there were more jurors from the Coast this year than in any recent year — "so that would presumably be an indication that more of them would be sympathetic to her."
Scoles said they interviewed a number of other people in Supervisor Smith's circle to try to pin down the purpose of the travel.
"A lot of Ms. Smith's friends are surprised that she's refusing to cooperate," said Scoles. "She could just do what Supervisor Pinches is going to do — if there was a misinterpretation, pay it back. Then it would all go away."
Mr. Scoles also confirms that the Grand Jury was quite aware of all the documentation in the matter, including the memos from the Clerk of the Board and the District Attorney.
"We also spoke to Ms. Furman [Clerk of the Board] and the two auditors during the period of time involved. It would have been better if the Auditor had taken a firmer stand. But unless you're a very brave auditor, you won't run afoul of the Supes and the Clerk of the Board by denying a travel expense that they've submitted and approved."
Colfax and Smith say they did everything according to policy; the Grand Jury simply misunderstood that policy. But Scoles says he can back up everything in the report.
"We have everybody on tape and sworn under oath. We can defend ourselves with the record. Certain key interviews we did were transcribed so that every member of the Grand Jury could read them."
"Unfortunately," added Mr. Scoles, "both David and Kendall shoot off at the mouth and they do not realize what they're saying. I'd be more careful and watch what I say if I were them. They could just say they disagree with the findings and that they'll respond at the appropriate time according to Grand Jury procedure and the structured method of response."
Smith and Colfax continue to fire repeated volleys from their mouths; they insist they are the victims of a political witch hunt.
What about the DA's refusal to pursue the penal code's order to recover the money if a grand jury says it should be recovered? DA Meredith Lintott says she doesn't prosecute civil matters, apparently assuming that the theft of public money is a civil matter.
"We've been through that," Scoles said. "I've spoken to the State Attorney General's office. It's totally erroneous that DAs cannot prosecute civil cases. She's new in office. She has a learning curve. She'll learn. The Attorney General's office said that [not prosecuting] is within the broad prosecutorial discretion that DAs have. Personally, I'm surprised that the DA won't pursue this because it's an opportunity to set a precedent for the public and show that the rules have to be followed."
"We're not going away," added Scoles. "Next year they'll listen a little more. The whole point is that people need to understand that if people are going to abuse a government process or government funds, the Grand Jury is not going to be ignored."
Mr. Scoles declined to comment on speculation that Ms. Lintott may not have prosecuted Ms. Smith because they're both from the same small Democratic Party political faction centered in Fort Bragg.
Although not criticized as directly as Supervisor Smith, Supervisor Colfax came out with a much more intense denunciation of the Grand Jury last week in a letter that was published in the Gualala-based Independent Coast Observer, a paper, like the other Coast papers, as yet to cover Mendocino County's very own Travelgate.
"Editor: Every request that I, J. David Colfax, submitted for reimbursement for travel expenses incurred in the conduct of my responsibilities as Fifth District Supervisor, 1999-2007, conformed with Mendocino County travel policies and reporting procedures.
"Every request was approved by the County Auditor. These claims are reported on forms signed under penalty of perjury, are complete and accurate, and are available for public view. These documents were provided to this and the previous Grand Jury.
"The current Grand Jury report is inaccurate, defamatory, dishonest, politically motivated, and a waste of public funds. It is a document that would have made Senator Joe McCarthy and his cronies proud.
"The Grand Jury is appointed by the current presiding judge, Richard Henderson. Its legal adviser is the District Attorney Meredith Lintott.
"I am requesting that these two elected officials review the Grand Jury document in question, that they recommend that it be rescinded, and that they make a concerted effort to ensure that all members of the next Grand Jury fully understand their responsibilities, obligations, and limitations as Grand Jurors.
—J. David Colfax, Fifth District Supervisor, Boonville"
Colfax's letter was promptly delivered to Judge Henderson, whose staff provided it to the Grand Jury Foreman, Mr. Scoles.
"I'm the strong silent type," remarked Mr. Scoles, the irony in his voice unmistakable. "I don't get into arguments with the likes of Colfax."
Mr. Scoles did say, however, that Colfax, no less royally than Smith, as in that's Lord Colfax to you, citizen, had every opportunity to make his case to the Grand Jury.
"We had to subpoena Colfax," said Scoles. "He wanted the full panel. He testified in front of all of us, but we had to subpoena him and his date-timer which was no help at all. I guess it was ego. He wanted to talk to the whole Grand Jury. Of course, he could do that without a subpoena. We could arrange that. But he demanded a subpoena. It's routine. No problem. So all the jurors had complete access to their side of the case. Everything is presented to the full panel after it is worked up. Everyone has to approve the findings unanimously. Each finding is reviewed and approved and goes to the judge and to County Counsel. In this case the County Counsel recused herself because she works for the Board. But we are very careful that every necessary step is taken. People with personal agendas don't last more than two weeks in a Grand Jury. The panel will see that and not pick it up and they'll quit."
Why did the Grand Jury revisit this issue after covering it in last year's report?
"I guess you could say there was some frustration about the non-response from last year. We worked very hard to impress people in government positions that just because one Grand Jury ends and another starts, we will not go away. Unfortunately, the history of the Grand Jury here is to get either no response or a completely inadequate response. Public officials need to remember that a non-response can result in a contempt citation. If we get the impression that you're ignoring us, we won't stand for that. We can arrange for a contempt of court citation if we have to."
* * *
Thanks to the recently established ukiahvalley.tv website, now usefully posting videos of Supervisors meetings, we were able to review the March 11 Board meeting when the Grand Jury asked that they be reimbursed for either mileage to meetings in Ukiah or overnight stays, whichever is less, because sometimes coastal jurors prefer to stay overnight than make two long trips from their homes to meetings in Ukiah. This perfectly reasonable request elicited a 40 minute blast from Supervisors Colfax (primarily) and Supervisor Smith, as they droned on about "inconsistencies" between the Supes travel reimbursements and the Grand Jury's travel reimbursements. Colfax never did get around to citing an actual "inconsistency," but Supervisor Smith stepped right up with one of her very own. Smith said that the all-volunteer Grand Jury already gets a modest meal allowance for lunch whereas the Supervisors don't. Supervisors are paid $68,000 a year plus full medical and dental coverage for them and their families. They also receive an array of reimbursements for office expenses, travel, communications, and so on. It's not like they need lunch money.
But Supervisor Smith suggested that it would be "more consistent" to also give the Supervisors a meal allowance.
"We need consistency of meal reimbursement for the Board," the monarchical Smith declared with a straight face. "We don't have that. The Supervisors are not reimbursed for meals. We want to maximize our time on the job. Sometimes we're here until 9 or 10pm but we are not reimbursed. I think we should revisit the Board's meal reimbursement. This would maximize people's efforts. The Board puts in a lot of time. Staying overnight allows me to do that to a greater extent."
Here's a partial verbatim excerpt from Supervisor Colfax's contribution to the March 11 denunciation of the Grand Jury:
"I'm not comfortable approving a less restrictive policy [i.e., the Grand Jury's request]. It's 43 minutes breaking the speed limit at 58 rather than 55 gets me here [from Boonville]. Yeah, getting from Gualala is a heckuva long pull. [sarcastic tone] I don't know of any Supervisor who makes that trip on a regular basis here. Those who come in from Mendocino, I respect that, but on the average three or four trips a week in bad weather... we have snow in Boonville and we have snow coming over that grade too. So just... so we don't get too righteous in our points of view, I'm looking for consistency here rather than trying to make points about whether there are personal agendas involved. I take some umbrage at the comment made by a member of the grand jury. Bad John or bad job [sic, we don't know what he's talking about], to that regard."
Colfax, as angry and as self-righteous as a person caught in full chisel, sputtered incoherently on.
"If you're sitting in front of the grand jury hour after hour trying to explain what the policy is, it would be useful that those who utilize county resources to do their legitimate work should be consistent with the policies of those of us who, believe it or not, do legitimate work for the County as well, so that all I'm looking at here is that there is some consistency and not this attitude that somehow we are cheating and they are being overextended. And that tone is something I would just like to see kept the hell out of the room! In future occasions, both in the jury room and in this room! But the fact of the matter is now we're creating further details and there are inconsistencies and they will be in... jest [sic] of concerns further down."
Colfax continued, flogging his long dead horse for a full forty minutes as board chair Wattenburger, perhaps mesmerized by the pure theater of his colleague's unhinged performance, failed to move on with the public's true business.
"I understand that my documents of travel are currently in the possession of the grand jury," the victim of outback McCarthyism said, "but I have to raise the question at which point do the Supervisors get an opportunity to request your records of your activities in this particular regard because how can we be sure we are getting what we pay for — to quote back to you your [last year's Grand Jury report was entitled "Are you getting what you pay for?"] — and I see people shaking their head, you won't have access to this. Well, I never thought I would be in a position of having my personal diary subpoenaed by this body... Quite frankly I don't expect that you have a sympathetic board member up here to your request. While I have always been a very strong supporter of the grand jury I feel the behavior of the grand jury in the last two years has been less than professional and more than political and I would also like today to get my documents back from the members of the grand jury who are here so grandly requesting this."
Colfax's Queeg-like tirade finally ground to a muttering halt. Supervisor Smith moved to allow the Grand Jury members the option of mileage or motel stay reimbursement, whichever is less. Supervisor Colfax, after denouncing the request for the forty minutes prior, said, "I second." Chair Wattenburger, who looked startled, grunted an amazed, "Hmmm!" As in, "I'll be damned."
The supervisors then voted 5-0 to approve the change — 40 expensive minutes later.
At the May 6 meeting, Mr. Scoles made another appearance to explain that since there were more grand jurors from the Coast the Grand Jury had overrun its own travel budget by about $20k.
Supervisors Colfax and Smith pounced.
"Two supervisors were defamed in my opinion in your report." Colfax then sarcastically asked Scoles for backup documentation for the Grand Jury's travel.
"It's all available at the Auditor's office," calmly replied Scoles. "All the Supervisors were interviewed about travel. We went over the whole spectrum [not just the two Supervisors in question]. I reviewed all the [travel] entries and had a treasurer go over the math. I know how far they travel and who was at what meetings. Attendance is tracked on an attendance sheet. Questions are asked whenever necessary. The attendance sheet gives the purpose, the committee attended, etc. and that's all backed up by minutes which I review. I have my records. The Auditor has all our requests, all of which have my signature."
Colfax, who twice demeaningly referred to Scoles as "Reverend," and even suggested that Scoles was unaware of the Golden Rule, replied sarcastically to Scoles, "That's admirable. But you're not the one being asked to allocate funds for your overrun. The Grand Jury calculates differently than what's done in the rest of the western world. 113 trips to the Coast. 16 trips for each of the seven coastal jurors. Is this consistent? Or do we take it on faith? Do you take it on faith? Where are the records? Where's the information?"
Scoles calmly repeated, "I have all the records. I know who went where and why. It's not a problem to look at our records. If the board wants it, it's no problem."
Colfax, ignoring what he was just told, took another shot at Scoles.
"There is a lack of documentation for a funding request, which is unusual and inconsistent. Unlike you, presumably, I don't question your integrity or motives, just your documentation."
Scoles, repeating his offer to provide documentation, said: "If you guys want it, we'll be happy to supply the backup."
Then it was Supervisor Smith's turn.
"We're not 'you guys'," Smith admonished Scoles. "That's not how you address the board. We're not guys!"
Smith launched into a long ramble about how the overrun should not be covered by a budget category called "economic development." The CEO had suggested that economic development be used because that was one of the few items below budget because the county hasn't yet hired an "economic development coordinator."
Hey, that's where the money is, take it!
Colfax suggested the $20k come out of the DA's office because the DA should oversee it.
Neither Wattenburger nor Delbar said one word on any of this, allowing Colfax and Smith to go on and on.
Toward the end of their monologues, Supervisor John Pinches wistfully observed, "When I write my book it's going to be a good one. I agree with all the arguments. Travel and trips to meetings — maybe I could tell the Grand Jury that some of these weren't necessary and you didn't have to do the travel. Tit for tat. But they are entitled to reimbursement for the travel. It's been done, the bill has to be paid, the money has to be transferred. It's ironic. ... I have to reimburse the County for what was being... a difference in travel where I went... my lack of documentation, although I don't know how I'm going to calculate the figure. But I want to get it behind us. They're entitled to their per diem. I'm sure the Grand Jury is completely aware of this. I just want to get it behind us. I agree with Colfax's comments and reasoning, I've seen it from all sides. This whole travel issue has been gone over in detail. I'd like to see the state have the same going over. I second the motion."
After a final bit of budget nit-picking from Smith, the board voted 3-2 (Smith and Colfax dissenting) to approve the $20k shift from the unfilled economic developer's budget to the Mendocino County Grand Jury.
A local man identified as James Hamilton took the audience mike to address the supervisors.
"You have a call out for grand jurors. From these comments [by Colfax and Smith] I doubt anyone would want to be on it. I think the Grand Jury should be under the Attorney General so there's some bite to what they say. If the Grand Jury says somebody has to do something, then somebody has to do something... It upsets me no end."