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by Mark Scaramella, June 18, 2010
The Mendocino County Grand Jury gets extra credit for persistence, if not effectiveness.
For the fourth year in a row, the Grand Jury has concluded that Fourth District Supervisor Kendall Smith is a thief, and this time they seem to be saying that she should be removed from office.
I hesitate to bore readers with yet another recitation of the particulars of Ms. Smith's petty criminality because it's been hashed out in all its excruciating glory in several previous Grand Jury reports and in several stories the Anderson Valley Advertiser.
Basically, the Grand Jury determined that Ms. Smith claimed travel reimbursement to and from Fort Bragg when she hadn't traveled, but stayed at friend's house in Ukiah. There was more, but the Grand Jury, in an overabundance of caution, gave Ms. Smith the benefit of the doubt and only asked her to pay back the most completely documented and clear amount. (There were other amounts that were less obvious due to the County Auditor's and the Supervisors' self-serving "interpretations" of the travel reimbursement policy that the Supes themselves wrote for themselves.)
So even after trimming back the amount to the bare minimum that Smith clearly owed, Smith first said she'd repay it, then reneged on that promised and refused. One of her more outrageous reimbursement claims was for "pet care" of her pet while she was at "work" in Ukiah.
The Supes get $68,000 per year plus perks which bring it up to the range of $90-$110k depending on the Supervisor District. One of those perks is a monthly travel stipend which reimburses the Supervisors for commuting to work. The amount of the stipend is tied to the distance the individual Supervisors travel to Ukiah. (One is forced to wonder what will happen when Dan Hamburg or Wendy Roberts is elected Supervisor in January. Hamburg lives very near Ukiah, much closer than Colfax; Roberts lives on the Coast, much farther than Colfax. Will the reimbursement "policy" be revised based on who is Supervisor? Don't ask.)
When the Grand Jury first looked at the Supervisors' travel reimbursements back in 2007, they concluded that "some Supervisors have a casual and loosely defined understanding of what is considered to be 'official County business,' resulting in substantive travel policy abuse."
Those Supervisors were John Pinches, David Colfax and Kendall Smith. To his credit, Supervisor Pinches didn't quibble over what the Grand Jury said were overpayments to him and he quickly paid it back.
But Supervisors Colfax and Smith, instead of paying back the rather small amount given their generous public salaries, angrily denounced the Grand Jury.
The Grand Jury reviewed Colfax's reimbursement claims and concluded that he had been reimbursed for attending social gatherings and other "meetings" that only Colfax thought were "county business." Colfax simply turned over this Daytimer and said that proved he was on County business. Colfax never said what the "County business" was, but we suspect some of it was evaluating the quality of the wine certain of his constituents were producing. But, since Colfax never forked over what the "meetings" were, the Grand Jury couldn't come up with a dollar amount, and Colfax skated.
Colfax is a lame duck now. Apparently, the Grand Jury has given up on him.
After the Grand Jury report came out, Supervisor Smith went on local public radio KZYX and made a series of demonstrably false assertions -- unchallenged by somnolescent KZYX interviewer Paul Hansen, of course -- in pseudo-response to Hansen's lob-ball questions on the matter.
Smith said that:
• The Grand Jury "ignored" the Clerk of Board memo on the subject of her overcharges.
(The Clerk of the Board's letter concerning her boss's travel claims was posted on the Grand Jury's website and was specifically disagreed with in the report.)
• The Grand Jury "ignored" the District Attorney's decision not to file criminal charges.
(The DA's contorted refusal was posted on the Grand Jury's website and was also specifically disagreed with in the report. The Grand Jury also included a quote from the state Penal Code which specifically states: "...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." The District Attorney refused an order from the Grand Jury! If Ms. Smith has a defense, let her present it in court.)
• The report contained nothing new.
(Of course it did -- Ms. Smith didn't pay back the money, for example.)
• The Grand Jury is not neutral, not balanced.
(In the opinion of the accused.)
• It's not "appropriate" for the Grand Jury to look into these things because they don't have the technical expertise or support staff.
(They are required by law to look into such things.)
• It's all political because Grand Jurors are self-selected and Smith was up for re-election.
(There were more jurors from Smith's District on the Grand Jury than ever before and three different Grand Juries came to the same conclusion.)
When Smith reneged on her promise to pay the $3,087 back, the Grand Jury referred the case to the District Attorney.
District Attorney Meredith Lintott said she had the discretion to decide not to pursue the case because in Lintott's personal opinion she couldn't prove intent to defraud to a jury. Lintott added that if the Grand Jury wanted to get the money back the Grand Jury could file a claim in Small Claims Court -- a preposterous suggestion.
This year the Grand Jury has again complained about Smith's failure to pay back the $3,087 she fraudulently received. And the Grand Jury added the DA herself to their complaint, saying she has no discretion to refuse an order from the Grand Jury. This year's Grand Jury has boldly asked for an opinion from the State Attorney General on the subject of whether the DA has such discretion.
Trouble is, they have already asked the Attorney General this question before. They also asked the San Francisco DA's office if the DA has discretion. Both said no — although they didn't go so far as to put their answers in a formal "Attorney General Opinion." But that doesn't change the answer. Given this history, asking for a formal Attorney General's Opinion will not force the DA to pursue the case either.
"The 2009-2010 Grand Jury agrees with the three previous Grand Juries which questioned the refusal of the Mendocino County District Attorney (MCDA) to enforce California Penal Code §932. For the past four years the GJ has investigated and pursued the reimbursement of monies owed the money-strapped County by Mendocino County Supervisors. The amount pursued may seem insignificant; however, this is an elected official who apparently ignored the law. The MCDA refused to uphold the California Penal Code §932, which gave the office full authority to order repayment of funds, citing prosecutorial discretion. One supervisor [Pinches] repaid travel reimbursement overcharges in full. Another supervisor [Smith] agreed to repay the wrongfully claimed travel reimbursement, but reneged on the agreement. The debt to the county remains unpaid by one Supervisor [Smith]," wrote Grand Jury Foreperson Kathy Wylie in the report summary.
This year's Grand Jury repeats that the District Attorney has no discretion not to prosecute cases stemming from Grand Jury referrals.
"Government Code §3063 states: 'The District Attorney shall have a copy of the accusation served upon the defendant, and by notice in writing shall require the accused to appear before the superior court of the county, at a time stated in the notice, and answer the accusation. Appearance shall not be required in less than 10 days from the service of the notice. After service, the original accusation shall be filed with the clerk of the court'."
Continuing: "The only remedy if an elected official is found guilty on Government codes 3060-63, is removal from office."
Smith and Colfax are also the only two supervisors who haven't agreed to take a voluntary pay cut like every other County employee. They still get their full $68k. Plus generous perks. The Grand Jury also points this out.
Not that it will go anywhere.
Unfortunately, nothing is likely to come to any of this. Most of the time, Grand Jury findings and recommendations go nowhere. In 20 years of closely following Mendocino County Grand Jury reports, we have never seen anything change for the better as a result of a Grand Jury report.
A typical response is, "The [agency involved] agrees with this finding." Then, as in the case of the Grand Jury's simple finding a few years ago calling for flow gages on water pumping in the Russian River watershed, nothing happens -- even though the Board of Supervisors replied to the Grand Jury, "The Board of Supervisors agrees with this finding."
All the Supervisors had to do was ask their County Counsel to draft a "gaging ordinance." The rest would have been done by the various water boards and districts and would have been phased in so that nobody was inconvenienced. With these gages the districts and their customers would have been able to avoid a lot of bureaucratic hassle they've encountered from the State Water Board.
But such rationality is nothing more than an irrelevant digression here.
The other typical reply is, "The [agency involved] disagrees with this finding." End of finding.
Now we have an individual County official who still won't return the money she stole as four different Grand Juries have demanded. And a District Attorney who won't follow a Grand Jury lawful instruction to try to get the money back.
Perhaps a new District Attorney will be elected in November and perhaps that new DA will do something about Supervisor Smith's well-documented theft.
What does this sad tale tell us about Official Mendocino County?
Oh, and did we mention that Supervisor Smith cruised to comfortable re-election in 2008 soon after the Grand Jury report came out?