How to Steal $3,000
by Mark Scaramella, August 12, 2010
Three years ago, Supervisor Kendall Smith claimed $14,658 in travel expenses. Among the many other things the regal solon thought the taxpayers should pay for was her pet care.
When the Mendocino County Grand Jury examined Smith's Claims, the Jury concluded: “A review of the Supervisors’ claims revealed persistent abuse of the Travel Policy from January 2005 through November 2006 and questionable weekend travel reimbursement claims by Supervisor David Colfax and policy misinterpretation and a paucity of claim documentation that was readily acknowledged by Supervisor John Pinches; and that the First and Second District Supervisors [former Supervisors Delbar and Wattenburger] have routinely submitted clear and properly documented travel expense claims.”
Three subsequent Grand Juries reviewed the Smith case, including her “explanation,” and all three agreed that Smith had stolen at least $3,087 in travel reimbursements for travel to and from Fort Bragg while she stayed at friend's house in Ukiah. The Jury said Smith should pay the money back.
When the Grand Jury first interviewed Smith they asked her if she had any back-up data to explain her travel overcharges. Smith first said she “forgot” to bring the data. Later in the same interview Smith confessed that she didn't have any back-up data. Nor, she said, did she have a meeting calendar that might have justified her travel by confirming when and where she went on the public’s business.
No calendar. No documentation. Just made up claims with no backup.
The Auditor couldn't determine anything more than the estimated “minimum” $3,087 overcharged by Smith because she supplied no records. In trying to come up with an estimate of what Smith owed, the auditor indulgently asked Smith what she thought might be fair. Smith told the Auditor that 27% of her mileage claims were for trips not traveled. She said that she stayed overnight in Ukiah at a private home on nights she didn’t travel to Fort Bragg. But she charged the taxpayers for the trips home she never made.
The Auditor did her own calculation using a modified version of Smith’s estimate and came up with $3,676 owed. Smith then magically produced rent receipts showing a $100 a month room rental to the owner of the private home where she stayed in Ukiah. The Auditor didn’t buy that transparent dodge and said that Smith could only charge by the day at $3.33 per. Which is how the Auditor came up with the $3,087 figure.
By citing only the lowest possible figure they could use, the Grand Jury gave Ms. Smith a big benefit of the doubt. In the great daily press of the people's business you made a mistake, dearie, so just pay the money back and we'll all pretend you're not the petty chiseler you obviously are and we'll go on pretending you're a reputable person. The Grand Jury merely invited Smith to pay back the money. Smith, reinforced by Supervisor Colfax, her comrade in travel reimbursement scamming, commenced “interpretive” discussions of the reimbursement policy that the Supes themselves had written for themselves.
Even after the Grand Jury trimmed back the amount Smith owed to the bare minimum, Smith first said she'd repay it, then reneged on that promise and refused to pay.
The Supes make $68,000 per year plus generous perks, meaning they take in a nice package of $90-$110k a year in a county where the average family of four lives on $34,000 a year. One of those perks is a monthly travel stipend. It reimburses in the range of $600 to $1100 per month to pay the Supervisors for driving to and from work; the amount is tied to the distance the individual supervisors travels. Smith gets a lot because she lives 90 minutes from Ukiah. Supervisor McCowen lives in Ukiah so he gets less.
Three supervisors have voluntarily taken 10% pay cuts. Smith and Colfax have refused. Colfax, the lamest of lame ducks, is not running for re-election. He doesn't even bother returning constituent calls anymore, and he never did return calls to constituents he perceived as hostile, one of whom has reported that when he happened to reach Colfax by phone the supervisor invited his constituent “to go fuck yourself.”
Smith, twice elected out of Fort Bragg, may be too much even for her fogbelt supporters who routinely return incompetent women to the 4th District seat, Liz Henry being the last supervisor from Fort Bragg who was both capable and gracious, although Liz was steadily sniped at by both Coastlib and the lions of Louisiana-Pacific. Coastlib has presented the county with two ciphers in a row, almost twenty year's worth in Patti Campbell and Smith.
Smith thinks her supe's salary is already unfairly low because department heads have taken salary reductions after having received raises three years earlier. Get the supervisor's reasoning here?
The DA has refused to indict Smith, a political ally of DA Lintott as both swim in the same pseudo-liberal, algae-ridden pool that assumes because you say you're a warm, wonderful person, you are one, questions being regarded in Mendocino County as rude when they aren't merely impertinent. You are, then, whatever you say you are. The DA says Smith isn't a crook because Smith says she isn't a crook. The DA can’t prove “intent to defraud.” Which basically translates into, We know you owe the money, but we don't want to bother trying to get it.
The Grand Jury correctly says that the DA must file to get the money back from Smith because the law requires the DA to do so. This year the Grand Jury asked the Attorney General to force the DA to do what the law requires. We’re not holding our breath.
Remember, when the Grand Jury first determined that Ms. Smith had overcharged the County by at least $3,000 back in 2006, Ms. Smith straight up lied to KZYX News where, of course, she was assumed to be telling the truth because, well, because she's a liberal and a supervisor.
Smith told Radio Deaf and Dumb that:
• The Grand Jury “ignored” the Clerk of Board memo on the subject of her overcharges.
In fact, 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.
In fact, the DA's contorted refusal to file criminal charges against Smith was also posted on the Grand Jury's website and was also specifically disagreed with in the report. Additionally, the Grand Jury 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 that order from the Grand Jury.
• Smith said the report contained nothing new.
Of course it did — Ms. Smith didn't pay back the money, for example.
• Smith said the Grand Jury is not neutral, not balanced.
Four grand juries in a row aren't neutral, aren't balanced?
• Smith said it's not “appropriate” for the Grand Jury to look into these things because they don't have the technical expertise or support staff. (Note here the inevitable invocation of appropriateness; it just isn't appropriate for a grand jury to look at my nickel nosing thievery.)
The Grand Jury is 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.
In fact, there were more jurors from Smith's District on the Grand Jury than ever before, and the subsequent non-election grand juries concluded the same thing.
When Smith reneged on her promise to pay the $3,087 back, the Grand Jury referred the case to the District Attorney where nothing was done.
To this day Smith indignantly refuses to return the money she stole from the County.
In 2007, after the Grand Jury wrote their first follow-up and Ms. Smith had to respond, Ms. Smith had changed her tune.
Grand Jury: The 2007 Grand Jury confirmed the 2006 finding that in the case of the Fourth District Supervisor, an incorrect interpretation of the travel policy as a “per diem” resulted in claims for reimbursement when no miles were actually traveled and no cost was incurred for overnight lodging.
Smith: Disagree in part. I agree this was the finding however I disagree with the finding and how it was arrived at. The Fourth District Supervisor incurred more expenses for travel than were submitted or reimbursed.
Grand Jury: When requested by the 2006 Grand Jury to present travel diaries, journals, receipts, or other original evidence of meetings and travel, the Fourth District Supervisor first stated that she had forgotten to bring them and then said that she did not maintain such records. She informed the 2007 Grand Jury that she did not and does not maintain an engagement calendar to record travel and business- related appointments.
Smith: Disagree in part. The Fourth District Supervisor stated information was not retained for this entire period nor was it required to be. Additionally, the Supervisor offered to attempt to provide information regarding specific dates if requested to do so. Specific date information was not requested.
Grand Jury: The County Auditor could only estimate the amount of overpayments to the Fourth District Supervisor through November 2006 because the Fourth District Supervisor did not support her travel claims with lodging receipts and documentation of dates, destinations and County business purpose of her travel expenditures.
Smith: Disagree. Lodging receipts were not required under the policy implementation of the BOS travel policy when I assumed office in 2005. Additionally, dates, destinations and business purpose of travel were sufficient for the previous Auditor to reimburse the claims. In several instances the Fourth District Supervisor provided more detailed documentation of travel than was provided in claims submitted by other supervisors during a similar time frame.
Grand Jury: In lieu of accurate records, the Fourth District Supervisor proposed, to the 2006 Grand Jury and to the Auditor, a formula to estimate what percentage of her mileage claims had actually been driven. Applying this formula, 27% of the mileage for which the Supervisor had been reimbursed was not actually traveled.
Smith: Disagree. The Fourth District Supervisor did not submit a formula to estimate mileage in lieu of accurate records. The Fourth District Supervisor submitted travel claims consistent with the travel policy in 2005-2006 and consistent with those of her immediate predecessor. The Grand Jury suggested a formula be used to address their concerns. This was prior to an actual review of past records and the Clerk of the Board’s memo stating the past practice as evidenced by those records.
Grand Jury: The formula was based on travel records submitted to the Auditor in 2007 in response to the 2006 Grand Jury travel investigation. The formula was rejected by the Grand Jury as an inaccurate representation of the undocumented travel that was claimed between January 2005 and November 2006 when the Supervisor was claiming a “per diem” for each day spent in Ukiah.
Smith: Disagree. The formula referenced was suggested by a Grand Jury member to the Fourth District Supervisor to resolve differences of opinion as to the travel policy interpretation. The Fourth District Supervisor has no knowledge as to a rejection of the formula by the Grand Jury.
Grand Jury: The Auditor was not made aware of the Grand Jury’s rejection of the formula or of the reason for this rejection. Lacking any substantive documentation of the expense claims, she estimated that the Fourth District Supervisor owed the County at least $3,676.
Smith: The Fourth District Supervisor does not agree or disagree with this statement as I have no knowledge of communication between the Auditor and the Grand Jury.
Grand Jury: The Fourth District Supervisor then submitted newly found expense documentation to the Auditor, including copies of 15 monthly rent checks of $100 each to rent a room in a private home for use when County business required her to stay in Ukiah.
Smith: Disagree in part. Documents were not ‘newly found’. The auditor asked for additional travel documentation heretofore not required.
Grand Jury: The rental period was from June 2005 through August 2006. The Auditor noted that overnight stays during this time should be reimbursed at the rate of $3.33/day (the pro-rated daily lodging cost at $100/30) rather than on the basis of round-trip mileage.
Smith: Disagree in part. This was the Auditor’s assessment when attempting to arrive at an amount that may have been overpaid to the Fourth District Supervisor.
Grand Jury: On the basis of the additional documentation submitted by the Fourth District Supervisor, the Auditor reduced the amount owed from $3676 to $3087.
Smith: Disagree in part. The amount referenced was outlined in a memo from the auditor dated 6/26/07. It clearly states “may” have been overpaid. It also states that a historical analysis of past claims was not done. It is not a comprehensive audit of the Fourth District Supervisor’s claims, the immediate past Fourth District Supervisor or any other supervisor’s claims.
Grand Jury: The Fourth District Supervisor acknowledged having received the overpayment. In a memo to the Auditor, dated June 20, 2007, she stated:
“…The Mendocino County Grand Jury has asked that I pay to the County of Mendocino an amount you determine to be appropriate under your interpretation of the Board of Supervisors Travel and Meal Policy.”
“…While I do not feel your initial methodology included all pertinent factors, I am committed to concluding this matter by June 28, 2007, in a manner satisfactory to you and to the Grand Jury.”
Smith: Disagree in part. The statement as quoted does not acknowledge receiving an overpayment. Committing to concluding a matter without review of-or absent pertinent documents and analysis of- past practice, would be wrong. The documents to conclude this matter expeditiously are available.
Grand Jury: When the funds had not been repaid by the June 28, 2007 deadline, the 2006 Grand Jury instituted legal action under the provisions of Penal Code Section (PC) 932 ordering the DA to recover $3,087 in overpayments made by the County to the Fourth District Supervisor.
Smith: Disagree in part. The action did occur as listed but I do not believe an overpayment occurred. The Fourth District Supervisor incurred more costs in conducting County business during the timeframe listed than were submitted for reimbursement.
Grand Jury: The written BOS Travel Policy that was already in place in 2005 and remained in place through June 2007, and the current policy that took effect in January 2008, cover all reimbursable in-county travel. This includes in-county mileage and overnight stays when there are back-to-back meetings. Meals associated with in-county over-night stays are not covered under any of the BOS Travel Policies.
Smith: Disagree in part. The 2005 travel policy references management personnel reimbursement rates that are delineated in Mendocino County Policy #18. Also, other travel compensation is addressed by resolution.
Grand Jury: The Fourth District Supervisor stated that the Travel Policy in effect from 2005 through June 2007 was confusing and that she did not completely understand it. She further stated that she had interpreted the Travel Policy as a “per diem”, i.e., a fixed amount to which she was entitled whether or not she had either mileage or lodging expenses.
Smith: Disagree in part. The 2005 BOS travel policy is not clearly worded. As an example, it does not state receipts are required for in-county travel, yet retroactively they have been requested of the Fourth District Supervisor. The management policy clearly states receipts are not required under certain circumstances and, meals are also provided in-county under certain circumstances. My interpretation of the travel policy was that of my predecessor as the records reflect.
(At that May 2008 Board meeting the monarchical Smith declared with a straight face: “We need consistency of meal reimbursement for the Board. 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.” Thereby acknowledging that meals are not reimbursable.)
Grand Jury: The Fourth District Supervisor persisted in submitting travel claims according to her “per diem” interpretation even after discussing the Travel Policy with the former Auditor late in 2005 (her first year in office) and being told that it was incorrect.
Smith: Disagree. I did not discuss the travel policy with the Auditor in late 2005.
Grand Jury: The 2007 Grand Jury confirmed that the Fourth District Supervisor claimed 22 round-trips in June of 2006 including 17 round-trips in 18 consecutive days. For the same month, she had paid monthly rent of $100 for a room in Ukiah for use as a bedroom “…as needed to do her job.”
Smith: Disagree. The Fourth District did not submit claims for 22 round trips in June of 2006. Nor were there 17 round trips in 18 consecutive days submitted. This is incorrect as the records reflect.
Grand Jury: The Fourth District Supervisor discussed her “per diem” interpretation with the former Auditor again in December 2006 and received the same answer.
Smith: Disagree. The Fourth District Supervisor did not discuss the travel policy with the Auditor in December 2006. I asked the Auditor for a meeting to conduct an exit interview during December 2006. This meeting did not occur until January 2007, just prior to his leaving office.
Grand Jury: Under Section (A) (2) (d) of the Travel Policy (prior to June, 2007), if no miles are traveled and no cost is incurred for lodging, no reimbursement is permitted.
Smith: Disagree. This is not what the policy states.
Grand Jury: Supervisors of the First, Second, Third and Fifth Districts and the former Fourth District Supervisor each indicated that they understood the meaning of the Travel Policies in effect for the period of 2005-2007. Each of them rejected the interpretation of the mileage allowance as a “per diem.” Each of them rejected the argument that mileage could be claimed when there had been no expense either for driving or for lodging.
Smith: Neither agree or disagree with this finding as I have no knowledge of what the individuals listed “indicated” they understood of BOS travel policies in discussions with the Grand Jury
Grand Jury: Supervisors for the First, Second and Third Districts did not claim any substantial weekend travel; the Fourth District Supervisor had some weekend travel and was unable to describe for the Grand Jury the county-related business purpose of the travel.
Smith: Neither agree or disagree with the first part of this finding as I have limited knowledge of other supervisors travel. The Fourth District Supervisor provided information for weekend travel as well as weekday travel.
Grand Jury: When asked once again, by the 2007 Grand Jury to compensate the County for excessive reimbursement claims, the Fourth District Supervisor declined to make the repayment, as she had previously agreed to do. She stated that the policy was “confusing,” the practice was “common procedure,” and that she had many expenses as a result of her job including “tires, pet care and meals away from home.”
Smith: Disagree in part with this statement. The Fourth District Supervisor declined to repay the County for excessive reimbursement claims as they were not excessive. They were filed consistently in compliance with the travel policy in place when I assumed office, as the records reflect.
Grand Jury: Tires are among the car costs covered by the allowed government mileage rate for reimbursement for miles actually driven. Pet care, in-county meals and other incidentals are not reimbursable under any county travel policy.
Smith: Agree with first sentence. Disagree in part with second sentence as in-county meals are reimbursable under Policy # 18 and the BOS travel policy of 2005- 2006, under certain circumstances.
Grand Jury: The revised policy makes no allowance for reimbursement of more than two overnight stays in a week and limits hotel reimbursement to weeks with a regularly scheduled Board of Supervisors’ meeting. Lodging receipts are required. Meals associated with overnight
stays are not reimbursed.
Smith: Agree. This is an accurate statement of the current BOS travel policy. Lodging receipts are required and the policy clearly states this unlike the previous BOS policy in effect in 2005-06 which did not state receipts were required.
Grand Jury: The Fourth District Supervisor repay to the County of Mendocino the amount of $3,087 that was established by the Auditor to represent travel reimbursement overpayments.
Smith: The Fourth District Supervisor submitted claims in the same manner as her immediate predecessor. Extensive review of those documents clarifies the travel reimbursements in question were filed in a like manner to her predecessor. A review of predecessor’s claims spanned four calendar years and over 125 pages of documents representing the entire reimbursement file of predecessor for this time period to the best of my knowledge. My claims have been filed consistent with the immediate predecessor and the policy interpretation in place when I assumed office.