Mendocino County supervisors face a legal challenge to their decision to abruptly suspend embattled county Auditor Chamise Cubbison without pay, according to the elected official’s attorney.
Santa Rosa lawyer Chris Andrian said Saturday, “We have engaged an employment attorney who we will be following up with on Monday.”
Andrian is representing Cubbison in a criminal case District Attorney David Eyster filed against her a week ago. Eyster accused Cubbison and former county payroll manager Paula June Kennedy of single felony charge each of misappropriation of public funds, stemming from $68,000 in extra pay for Kennedy over a two-year period during the Covid pandemic. Kennedy was paid for work performed. Cubbison did not receive any financial benefit from a disputed pay pact cited by the DA.
Cubbison, rather than accept the DA’s offer to file only a misdemeanor charge if she would resign, chose to fight the felony accusation he ended up filing against her.
Cubbison expected to enter a plea of not guilty last Tuesday, but the scheduled court hearing was delayed until Oct. 31 in Mendocino County Superior Court because Kennedy is seeking an appointment of a public defender.
A few hours after the plea entry was delayed, the county Board of Supervisors voted unanimously to immediately suspend Cubbison, a 16-year veteran county employee, without pay. The move enraged Cubbison and her supporters, who questioned whether supervisors have a legal right to dismiss an elected official before she could even enter a plea to the criminal allegation.
Attorney Andrian, who has questioned the DA’s possible biases against Cubbison given his public opposition to her taking office, said the suspension raised other serious issues.
“Instinctively, it doesn’t feel right especially since there is no claim that Chamise pocketed any public funds. And there is no claim that there is any public money in immediate jeopardy,” said Andrian.
Besides, said, Andrian, “There is still constitutional claim called the presumption of innocence.”
Board members and their outside attorney, Morin Jacobs of San Francisco, cited a state code 27120 to suspend Cubbison. But the code specifies a county treasurer and not an Auditor, which is Cubbison’s principal role.
Andrian maintains that the criminal charge facing Cubbison, and co-defendant Paula June Kennedy, the county’s former payroll manager, stems from a disputed extra pay agreement during the Covid pandemic made before the board forced a combined Auditor/Controller/Treasurer/Tax Collector office, and she took over the combined departments.
The government code in question 27120 states that “Whenever an action based upon official misconduct is commenced against the county treasurer, the board of supervisors may suspend him from office until the suit is determined. The board may appoint some person to fill the vacancy, who shall qualify and give such bond as the board determines.”
At issue in the minds of Cubbison and her supporters is whether the code applies to her because at the time of the alleged misappropriation she was not the Treasurer/Tax Collector but acting Auditor/Controller who was serving out the unexpired term of former Auditor Lloyd Weer. Cubbison was subsequently elected by voters to serve an entire term of the newly consolidated office as Mendocino County Auditor-Controller Treasurer-Tax Collector and was sworn into office for a term beginning January 2023.
The code language suggests a public official can’t be terminated for alleged misconduct if voters elected them after the fact.
County Supervisors Ted Williams and Glenn McCourty did not respond to requests for comment on the possible legal challenge to the board’s action, and their complicity in the law enforcement investigation that led to DA Eyster filing a felony criminal charge against Cubbison. Eyster also has not responded to questions submitted in writing about the case, including his possible bias against Cubbison because of his past run ins with her and other auditors over his spending.
County supervisors in late 2021 forced the consolidation over the objections of veteran county officials including Cubbison, and now retired Treasurer/Tax Collector Shari Schapmire.
Cubbison subsequently was elected to lead the combined offices that were soon, as predicted, engulfed in turmoil. The true state of the county’s finances is under question and being reviewed at the state level. Ever since the board decision, the county’s financial offices have been in chaos, exacerbated by an exodus of senior county workers in both offices, a software system that still does not work as expected, and the subsequent political struggle between Cubbison, board members, and DA Eyster.
Eyster for more than a decade has been engaged in a power struggle with the Auditor’s Office. He fought with retired Auditors Meredith Fort and Lloyd Weer, who questioned his use of drug related asset forfeiture funds, travel reimbursements, and other office expenses including annual employee parties at the Broiler Steak House that Eyster labeled ‘training sessions.’ Office parties are prohibited under country regulations.
Eyster and Cubbison squared off over similar issues when she became Weer’s assistant, and then when she was elected to lead the combined offices. Eyster at the time joined some supervisors in promoting the notion of a new county Department of Finance to oversee the county’s finances.
Eyster publicly supported the new department creation when he made an extraordinary appearance before the Board of Supervisors 2021 to denigrate Cubbison’s qualifications, and successfully block her appointment as interim department head before her eventual election.
Andrian and Cubbison supporters’ question Eyster’s role in the criminal case, given what appears to be his past personal biases toward the elected official.
When county supervisors suspended her five days after Eyster filed criminal charges, the public uproar gained traction.
Duncan James, a leading Mendocino County attorney, served as district attorney and county counsel for Mendocino County. In recent days, he questioned the validity of Cubbison’s suspension without pay, contending that the government code cited may not apply to her conduct as Auditor, and a procedural squabble over who authorized extra pay for Kennedy, the county’s former payroll manager accused along with Cubbison of criminal misconduct.
Norm Thurston, retired budget manager for the Mendocino County Sheriff’s Department, said he is worried that the “side-lining of Chamise Cubbison has left the county’s voters without their duly elected independent fiscal watchdog.”
Thurston in a public statement questioned the board’s appointment of Sara Pierce, an analysis in the County Executive Office, as acting Auditor in place of Cubbison.
“Because the appointed substitute is an employee of the CEO’s office, there is legitimate question of independence, especially with regards to matters related to that department,” said Thurston.
Thurston said it is good the state Controller’s Office is auditing the county’s finances as sought by board members because of their quarrels with Cubbison, “but we do not know the scope of the audit.”
“And when the audit is completed, the auditors will issue their report and head home, while the results of the audit may or may not be used to make substantive changes,” said Thurston.
Thurston said, “This all seems to me to create an environment where the county’s fiscal condition could spiral completely out of control, with no safeguards or safety rails.”
Monique Langer, of the Office of Public Affairs for the State Controller’s Office, said the “Mendocino County audit is still in progress and a report release date is not yet established.”