Trying to Get YOUR Money Back
by Mark Scaramella, October 14, 2010
Mendo's Supes. Kendall Smith, second from right.
Late last month we filed a claim against the County to get the County to recover the $3,087 (at least) they wrongly gave to Supervisor Kendall Smith. County officials have confirmed she was paid for official travel she did not travel. Our claim has, of course, been denied, as you will see if you're intrepid enough to read the following, local officials assist Supervisor Smith in the theft of public money. We are appealing the denial which will also probably be denied, and we expect soon to appear on the public's behalf in Small Claims Court where we hope to get the money restored to the taxpayers of this County. What follows is a legalese tour guide of our efforts to get the $3,087 Smith stole returned to the County's general fund. Our tour begins with the County's clearly incorrect rejection of our claim:
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“NOTICE IS HEREBY GIVEN that the claim, which you presented to the County of Mendocino on September 29, 2010, is being returned because it was not presented within six months after the event or occurrence as required by law. [See §901 and §912.2, inclusive, and 946.6 of the Government Code] Because the claim was not presented within the time allowed by law, no action was taken on the claim.
“Your only recourse at this time is to apply without delay to the County of Mendocino for leave to present a late claim [See §§911.4 and 912.2, inclusive, and §946.6 of the Government Code] Under some circumstances, leave to present a late claim will be granted. [See §911.6 of the Government Code]
“You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately.
Very truly yours,
COUNTY OF MENDOCINO
BOARD OF SUPERVISORS
10/7/10, by: Carmel J. Angelo, Clerk”
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Application For Leave to Present a Claim Which Has Been Wrongly Declared Late by Mendocino County
The AVA’s original claim reported the date and time of loss as:
Date of Loss: Originating in 2005, ongoing.
Time of Loss: Ongoing.
“This claim is being filed preparatory to court action requesting injunctive relieve under the California Code of Civil Procedure 526a to require the county recover funds wrongfully taken by Supervisor Kendall Smith for travel in her capacity as a Mendocino County Supervisor.”
In other words, the loss is ongoing and the clock is still running. The “event or occurrence” has been going on since 2005 since the “event” is a still uncorrected County error.
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§911.6. “(a) The board shall grant or deny the application within 45 days after it is presented to the board. The claimant and the board may extend the period within which the board is required to act on the application by written agreement made before the expiration of the period.
(b) The board shall grant the application where one or more of the following is applicable:
(1) The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced in its defense of the claim by the failure to present the claim within the time specified in Section 911.2.” (et seq.)
§911.2. “(a) A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.”
§911.4. “(a) When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.”
(b) “The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application.” (et seq.)
§946.6 (1) “The failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.4.”
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The damages suffered by the taxpayers of Mendocino County are ongoing and accumulating. They did not end six months after an “event or occurrence.” The County is simply using legalese and self-serving interpretations of procedural processes to avoid correcting an obvious wrongful disbursement of public funds. The County is therefore complicit in the wrongful disbursement of travel funds to Supervisor Smith.
Defendants Smith and Ford have never denied that travel funds were wrongfully paid to Supervisor Smith, nor that they were wrongfully taken by her, and the defendants have never denied that the travel reimbursement requested by Supervisor Smith was for (as the Grand Jury ruled) “fictitious commute miles.” Defendant Smith has stated that she interpreted the board’s travel policy to allow these fictitious commute miles to be reimbursable in the amount of $3,087, that other Supervisors had done the same thing, a claim unsupported by evidence.
Smith's claim is disputed by the County Auditor, the District Attorney and the Mendocino County Grand Jury; it should now be decided by a court of law because the County refuses to recover what is clearly a wrongful gift of public funds to Supervisor Smith.
If the County of Mendocino's travel reimbursement policy does allow officials to claim reimbursement for “fictitious commute miles,” then the County is engaging in an ongoing gift of public funds.
The County has also misapplied the six-month deadline to apply to this case which is not based on the required “event” or “occurrence” as in a conventional damage claim, but seeks to correct an ongoing misappropriation of public funds in anticipation of a court injunction if this claim is denied. In this case, the “event” spans five years, beginning in 2005 and continuing to this day.
Our claim was only submitted when it became clear after more than four years of inaction by County officials that no other official or agency was going to move to recover the taxpayer funds Smith had stolen. At first Supervisor Smith agreed to return the money, then reneged. The DA said the Grand Jury should take Ms. Smith to small claims court because there was “no intent to defraud.” The Grand Jury refused and ordered the DA to recover the funds. The DA again refused. Three subsequent grand juries substantiated that Smith had falsely claimed reimbursements for travel she had not made; these grand juries also ordered the District Attorney to take action. But the DA, a political ally of Ms. Smith, continued to refuse to take action, saying the Grand Jury didn’t have the authority to “order” the DA to take action when there was “no intent to defraud.”
The latest Grand Jury’s order to the DA finally resulted in an order from the DA to the County Auditor to withhold the wrongfully obtained funds from Supervisor Smith’s pay. The County Auditor refused, saying she needed a court order to deduct the amount owed. She, Ms. Ford, then asked County Counsel for a legal ruling on the need for a court order.
County Counsel Janine Nadel claimed a conflict of interest because Supervisor Smith is one of her “clients,” a claim that blithely ignores County Counsel's broader responsibilities to the taxpayers of Mendocino County.
Ms. Nadel referred the question of the need for a court order to the Sonoma County Counsel’s office, as if the attorneys employed by a neighboring county somehow had standing to rule on matters arising in Mendocino County.
The Sonoma County Counsel’s office replied that a court order was necessary, neatly — and predictably — confirming official Mendocino County's stance.
Since that ruling on September 19, 2010, no order has been sought and the issue has stalled as personal friends and political allies refuse to take action, leaving Mendocino County taxpayers still deprived of the $3,087 in taxpayer dollars (plus associated interest, costs and fees).
None of these excuses, delays and convenient crony shuffles from office-to-office are the responsibility of the claimant. They are the result of neglect and malfeasance on the part of County officials which these officials have resorted to to deny the claim and to protect their friend and political ally.
To deny this claim based on these deliberately imposed evasions by County officials reward a brazen theft of public funds.
Hence this claim is filed now due to the negligent and long-overdue absence of action of a number of County officials to correct an obvious wrong to the taxpayers of Mendocino County.
By claiming that wrongful reimbursement of “fictitious commute miles” to an elected official is “not presented within six months after the event or occurrence,” the County itself is complicit in the damages and should not only be ordered to recover the funds wrongfully disbursed to Supervisor Smith, but the County should be ordered by the Court to revise their travel reimbursement policy (as explicitly recommended by the Grand Jury) so that all official travel reimbursement claims by senior county officials — especially for “commuting” — be accompanied by expense reports with receipts and a full description of exactly what the official business was.
These delays are hardly the claimant’s responsibility. By denying recovery of these owed monies from Supervisor Smith, the County of Mendocino further erodes public confidence in the integrity of their institutions.