Supervisor Smith’s Fog Machine
by Mark Scaramella, January 12, 2011
Our ongoing attempt to get Supervisor Kendall Smith to pay back travel money for travel she didn't travel came before Judge John Behnke last week in Small Claims night court.
As the Judge noticed, there was quite a turnout, which included Smith's fellow chiseler, former supervisor David Colfax, and a number of aghast former Grand Jurors from the last four Mendocino County Grand Juries. It was their investigative diligence that confirmed that the two supervisors were stealing. They seemed to have assumed that their efforts would have by now resulted in the recovery of the stolen public money and they were curious to see how DA Lintott’s original suggestion to take them to Small Claims Court was going to work out.
The documented amount Smith herself had previously confirmed she owes is $3,087.
The total amount she and Colfax have falsely claimed as travel reimbursements adds up to many more thousands of public dollars because these falsely claimed reimbursements count as part of their total compensation, meaning that if they stay on for at least ten years, they will draw retirement pay at inflated rates, meaning their thefts are and will be ongoing.
There are lots of Americans sitting in jails and prisons for stealing less.
Anderson opened by presenting his case, basically the same case successive Grand Juries have presented and the same case we've presented in these pages for four years now.
Which is that Supervisor Smith claimed at least $3,087 in travel reimbursements she was not entitled to. She stayed at a friend’s house in Ukiah, then applied for and was paid per diem travel money, later claiming to the 2006 Grand Jury that her interpretation of the Board’s travel policy was that she got the travel money whether she traveled or not.
Smith's understanding of the policy was not shared by any of her colleagues (nor the Grand Jury) except for her equivalently venal colleague, the egregious Colfax. This pair of grasping supervisors have suggested that the Grand Jury is “politically motivated,” implying that they are somehow noble liberals being pursued by vengeful reactionaries — four successive groups of them.
The Fourth District supervisor testified under oath last Wednesday night that her predecessor, Patti Campbell, shared her self-serving interpretations of travel policy, but according to the Grand Jury, which investigated Campbell and other past and present supervisors, neither Campbell nor any other supervisor agreed with Smith.
Following Anderson’s initial statement summarizing his complaint, Judge Behnke said he'd reviewed applicable law in anticipation of the hearing. He asked Anderson, “Do you agree that your action against Ms. Ford is based on her job performance as a government employee?”
Ms. Ford was seated with Smith at the defendant's table. They giggled like schoolgirls in the principal's office as the hearing began.
Anderson had just said he assumed Smith was acting as a public official when she falsified her travel claims and that County Auditor Meredith Ford, named by him as co-defendant along with Smith, had also acted in her official capacity when Ford, claiming that she needed a legal opinion and a court order (which we were trying to get) before she could deduct the money from Smith's pay, refused a directive from District Attorney Meredith Lintott to deduct the $3,087 from Smith's monthly supervisor's pay.
Anderson answered, “Yes, I think she should have repaid the money when it was first requested by the District Attorney. When you have public officials chiseling on their travel reimbursements it's very bad for public morale at a time ordinary people are struggling to pay their bills.”
Judge Behnke, citing what he said were the relevant passages of the law, then invoked government immunity. The youthful-looking judge told Anderson that public officials are immune from lawsuits if a judge determines the officials acted in their official capacities.
Therefore, Behnke said, he would not ask Ms. Ford for a response and that she was dropped from the case. (A friendly attorney told us later that courts interpret government immunity so broadly these days that even the least paid public worker is protected as a government employee even if they do something that’s only tangentially related to their job.)
Then Behnke smacked Anderson with another legalism.
“With respect to the claim you are making,” said Behnke, “I categorize it as a false claim under the government code, a false claim. That is, you're alleging that a person or a government official took money that was local government money under false pretenses. That's true, isn't it?”
“Yes, it is,” said Anderson.
And, with that, Smith was off the hook.
The judge rambled on.
“So there are a series of procedures that apply in that situation,” Behnke said. “But off the top the situation with respect to Meredith Ford, a government employee acting in her official capacity — she's not a proper defendant in an E-10 action. Generally a mandatory duty versus a discretionary one requires a writ of mandamus,” said Behnke, adding that this was discretionary so Auditor Ford was immune. “The False Claims Act,” Behnke went on, “Government code section 12652, a government employee acting in the course and scope of her duties, something like Auditor or Controller, isn't a proper subject for that action. You haven't stated a claim against her that is cognizable under the law.”
Cognizable writs of mandamuses found in E-10's and section 12652 of the Obfuscation Code?
We were lost in a thicket of opaque legal references, rolled down from his honor's dais in a mesmerizing monotone that made no sense to anyone but, presumably, his honor.
As to Smith, Behnke declared, “The prosecuting agency is required to diligently investigate. They can bring a civil or criminal action. The DA can prosecute criminally or civilly. County Counsel has the ability to do that too.”
An added problem for anyone seeking redress from County government is that all the girls involved are personal friends. County Counsel Jeanine Nadel is about as likely to pursue Smith for the money as former DA Lintott was, another pal of Smith's from the Nambo wing of the Pambo Party, aka the Democrats of the Northcoast.
Former District Attorney Lintott had said she had no intention of prosecuting Smith criminally because, Lintott said, she didn’t think she could prove intent. At one point Lintott blithely suggested that anyone unhappy with Lintott's refusal to pursue Smith could “take it to small claims court.”
Which Anderson did last Wednesday.
Lintott never did make any statement regarding a civil prosecution by the DA and that option, which we intend to exercise, remains open.
Behnke then established to his own satisfaction that Anderson’s suit was a false claims action although it was intended as a taxpayer lawsuit alleging waste of taxpayer funds, but obviously Behnke wasn’t about to consider it that way.
“Government Code 12652c1 allows a false claim action under certain circumstances,” Behnke continued. “But that’s not met here. It’s a complex set of circumstances. Such suits are filed in Superior Court under seal. But here there’s no provision for Superior Court action.”
Behnke was reading from Government Code he’d previously looked up and had at hand, indicating that he'd had no intention of dealing with Anderson’s suit on its merits before it even began.
“There’s also a 60 day delay,” the judge said, “to give the DA a chance to exercise discretion first. And under 12652d1 no court has jurisdiction over an elected official. So the way the system is set up, the DA is supposed to investigate and exercise discretion. If not, a whisteblower can.”
Behnke droned on about how the Boonville editor's action wasn’t a whistleblower case, citing detailed case law and how it all amounted to: Not My Job, Dude. Go Back To Boonville And Review Yer Cognizables.
The judge went on to say that the Board of Supervisors should have done something about their errant cohort, and the DA could have done something, but the only non-government person to take action, well, that person has no legal standing in this court the way he did it.
Oh, and the statute of limitations has probably passed, added Behnke, ignoring the fact that the only reason the case was submitted four years later was that the County and Supervisor Smith had stonewalled it until it was obvious nobody in authority was going to do anything.
After making it clear that he had no intention of ordering Smith to pay the money back or ordering Smith's jolly Auditor buddy to dock Smith’s pay, Behnke asked Supervisor Smith if she wanted to respond.
Smith then read a windy two-page, single spaced “statement” repeating her claim that the poor girl has to travel all the way from Fort Bragg (as do many non-subsidized County employees at the lower pay grades) and that it is her interpretation of the then-in-place travel policy that she was entitled to the travel money whether she traveled or not. She said that Anderson’s and the Grand Jury’s allegations were “untimely and unproven.” Interestingly, she did not say the allegations were “false.”
Smith casually dismissed the diligent work of the past four Grand Juries by alleging that their findings “should not be taken as fact.”
Behnke asked Anderson if he cared to respond to anything in Smith’s statement.
“This is what she always does,” replied Anderson. “She turns on the fog machine to confuse issues long ago resolved. Four grand juries have gone over these same fuzzy and false claims in which Supervisor Smith blames policy, the grand jury system — everybody but herself — for basically billing the taxpayers for travel that the grand jury established she did not travel. We've done it before, and if we wanted to stay here all night we could do it again with a line by line refutation of Ms. Smith's claims.”
Behnke concluded by saying that he thought he had two options for dealing with the suit: 1. Dismiss it for lack of jurisdiction, or 2. Deny it for Anderson’s failure to follow the complicated process that might give him status if he could somehow qualify as a “whistleblower.” (Ha ha.)
* * *
Local “liberals” affiliated with the active wing of the Northcoast's closely held Democratic Party — Smith formerly worked as Congressman Mike Thompson representative in Mendocino County — say that the Grand Jury’s insistence that the $3,087 be paid back is a petty issue for a relatively small amount of money. Local liberals are big spenders, especially on themselves, especially when the money isn't theirs.
In fact, Smith and Colfax took much more than a mere three thousand. The true amounts of their thefts are closer to twenty thousand each. And, because travel stipends count as compensation, Smith and Colfax's retirement pay will be calculated at an amount higher than they deserve, meaning the theft is ongoing.
There is much public anger about this particular misappropriation of public funds. That anger was expressed in last November’s election when every other sales tax and bond measure in northern California passed except for Mendocino County's voters who, by a whopping 70% to 30%, turned down Measure C, a half-cent sales tax boost that would have partially replenished the County's depleted treasury. That resounding defeat was the public's way of saying, “We have no confidence in the Mendocino County Board of Supervisors.”
Two of whom are well-documented chiselers and none of the others seem to mind.
Next stop for us is newly elected District Attorney David Eyster with whose office we will file a complaint against Smith and Colfax. ¥¥