The DA’s Non-Vendetta

Last Tuesday, while taking five minutes to tell everyone else not to talk about the felony charges he filed against Auditor-Controller-Treasurer-Tax Collector Chamise Cubbison, District Attorney David Eyster told the Supervisors that “Neither my staff nor I have used or will use our positions to pursue retribution or purported vendettas against any defendants, public sector or otherwise, here in Mendocino County.”

Really?

Let’s go back to DA Eyster’s remarks to the Supervisors on August 31, 2021 where we find that not only did the DA strongly oppose Ms. Cubbison’s appointment to the position of Acting Auditor Controller over very narrow bureaucratic disagreements about his travel reimbursements and asset forfeiture claims, but he also claims that he was the person who first brought up the idea of eliminating the Auditor position and consolidating the offices. Eyster personally names Ms. Cubbison several times, insists that her appointment is “wrong,” questions her qualifications, and even claims that the retiring Auditor Lloyd Weer engineered and timed his retirement so that the “wrong” person, his assistant Ms. Cubbison, would be appointed.

You be the judge: Ego, Vendetta, or Impartial Pursuit of Justice?

District Attorney Eyster, August 31, 2021 to the Board of Supervisors:

“I have provided you with documentation and background and why we are opposed to this appointment. My staff is a— 13 years is a long time, my staff doubles that as far as experience. They are good at what they do. Unfortunately, it's not just that they [the auditor] want a piece of paper here or not. If you will see the memorandum from [illegible- Katherine Tomlitz?] we are being advised to take ourselves into an adverse audit exception on bad advice from Ms. Cubbison. And it's not just the district attorney's office. We follow rules of the state CAL-OES and other agencies that we work with. And we work closely with them and we work well. My belief is that this is time to consolidate the departments as allowed by the 27 legislation [sic] that I suggested to you that's out there. We were given special permission — not every county was given that — to allow that consolidation for purposes of efficiency, cost savings, and effectiveness. Eventually — and by the way I am not suggesting that you go to the step that supervisor Williams suggested [consolidation of the offices of Auditor-Controller and Treasurer-Tax Collector] immediately. I think that [Treasurer-Tax Collector] Shari Schapmire does well. But should we come to the point when she wants to retire I think the court [sic- Eyster meant the Board] should well consider going to a Director of Finance model where we have a more qualified, higher experienced, and I guess higher powered individual to come in as our CFO. I note — I will tell you this folks. If I was asking for your appointment and you want to see my personal file you could see it in a second. [Ms. Cubbison had expressed reservations in opening up her entire personnel file as requested by Williams and no one else.] So I'm wondering why that's a problem. Also I'm looking at the documentation that was sent to you and this is supposed to be a rubber stamp, or so it seems, because there is literally no documentation before you. We have always -- I have come to the Board -- and if you ask the CEO, I've come to the board multiple times. And never once as the Board upheld Ms. Cubbison’s decision or Mr. Weer’s decision when it comes to the problems we've ran into regarding finances and obstructionism. If you do appointment Ms. Cubbison I expect I will see you more often which could be a good thing. But I was just hearing recently that your agenda is pretty full going forward. Things like attorneys going to conferences that are required by their MOU, the County, me and the attorneys union— that we can't get those paid? That's ridiculous! When I actually went to the Board the Board actually at that time — I understand that for example supervisor McGourty and supervisor Mulheren were not there at that time and supervisor Williams perhaps also. But the board said why do we have to deal with this stuff and the like? Ms. Cubbison just told you that these travel authorizations need to be approved by the CEO’s office [Carmel Angelo, a personal friend of Eyster] or by me. Well, you know what? The CEO's office -- since 2008 [when Angelo was hired as CEO] — has had an exemption on those because they understand the documentation we provide is always legitimate, good and it covers the IRS responsibilities. What you have is basically — this is a case of demanding a piece of paper that doesn't need to be provided because the CEO's office [Angelo] says we don't want to have to micromanage and approve your travel. We do a lot of travel for conferences, for investigations and the like. It is not -- and the CEO [Angelo] understands this -- it is not to the public's advantage to have to get authorization for us to go out and investigate things where we tell the public where we are and why we’re going there. That just doesn't work for us. As for the asset forfeiture, this has always been a bone of contention with the auditor's office. They are wrong on it. They have always been wrong. And when I've had to go to the board to seek approval to force them to do something they have never won one. At some point they have to get it right before you make this appointment. I apologize to you. I hate having to do this. But this is too important of a position. I also provided you the outside law firm opinion as to the responsibilities of the auditor controller. Which was almost rejected completely by the auditor. And I think what you heard Ms. Cubbison saying is that what she wants to do is contrary to what the law says they should be doing. I take great pride and I have great transparency as to what I've done for the district attorney's office in the last 11 years going on 12. I wish the auditor-controller [Mr. Weer] good luck with his retirement. But when I told the public I was going to run and stay on for four years I meant it and I will. So I think what we are seeing here is an early retirement to try to get this appointment. And it's not the right person, it's not the right time, and it is an opportunity for the County to work better, raise the bar, and either consolidate or go to the CFO model. Thank you very much.”

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Notice Of Brown Act Violation

October 20, 2023

TO: Mendocino County Board of Supervisors Chair Glenn McGourty <bos@mendocinocounty.org>

CC: County Counsel Christian Curtis <curtisc@mendocinocounty.org>, District Attorney David Eyster eysterd@mendocinocounty.org

Dear Chair McGourty,

This letter is to call your attention to what I believe was a substantial violation of a provision of the Ralph M. Brown Act, one which may jeopardize the correctness and finality of the action taken by the Mendocino County Board of Supervisors.

On Tuesday, October 17, 2023, the Board of Supervisors unanimously approved the following motion made by Supervsior Ted Williams: 

“I move we suspend the Auditor-Controller / Treasurer Tax Collector and appoint Sarah Pierce as acting Auditor-Controller / Treasurer Tax Collector.”

After clarifying that the suspension was without pay, the motion was unanimously approved.

However, the government code section cited by the outside attorney prior to the motion, section 27120, which authorized the suspension says:

“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.”

The approved motion is flawed because:

1. The government code section (27120) cited applies to a “County Treasurer,” not an “Auditor-Controller / Treasurer Tax Collector” as cited in the motion.

And,

2. The motion did not establish that the person appointed as Acting Auditor-Controller / Treasurer-Tax Collector qualifies for the position as required by Government Code Section 27120. (“…shall qualify…”)

Therefore, this action violated the California Open Meetings Law, aka, the Brown Act, because Mendocino County does not have a “Treasurer.” According to the June 7, 2022 election results Chamise Cubbison was elected to a position entitled “Auditor-Controller / Treasurer-Tax Collector.” In addition, the motion did not include a finding that Ms. Pierce is qualified for the position as required by Government Code Sections 26945 (Auditor) and 27000.7 (Treasurer).

…which read as follows: 

(26945) “No person shall hereafter be elected or appointed to the office of county auditor of any county unless the person meets at least one of the following criteria:

(a) The person possesses a valid certificate issued by the California Board of Accountancy under Chapter 1 (commencing with Section 5000) of Division 3 of the Business and Professions Code showing the person to be, and a permit authorizing the person to practice as, a certified public accountant or as a public accountant.

(b) The person possesses a baccalaureate degree from an accredited university, college, or other four-year institution, with a major in accounting or its equivalent, as described in subdivision (a) of Section 5081.1 of the Business and Professions Code, as that section read on December 31, 2009, and has served within the last five years in a senior fiscal management position in a county, city, or other public agency, a private firm, or a nonprofit organization, dealing with similar fiscal responsibilities, for a continuous period of not less than three years.

(c) The person possesses a certificate issued by the Institute of Internal Auditors showing the person to be a designated professional internal auditor, with a minimum of 16 college semester units, or their equivalent, in accounting, auditing, or finance.

(d) The person has served as county auditor, chief deputy county auditor, or chief assistant county auditor for a continuous period of not less than three years.”

(27000.7)“(a) A person shall not be eligible for election or appointment to the office of county treasurer, county tax collector, or county treasurer-tax collector of any county unless that person meets at least one of the following criteria:

(1) The person has served in a senior financial management position in a county, city, or other public agency dealing with similar financial responsibilities for a continuous period of not less than three years, including, but not limited to, treasurer, tax collector, auditor, auditor-controller, or the chief deputy or an assistant in those offices.

(2) The person possesses a valid baccalaureate, masters, or doctoral degree from an accredited college or university in any of the following major fields of study: business administration, public administration, economics, finance, accounting, or a related field, with a minimum of 16 college semester units, or their equivalent, in accounting, auditing, or finance.

(3) The person possesses a valid certificate issued by the California Board of Accountancy pursuant to Chapter 1 (commencing with Section 5000) of Division 3 of the Business and Professions Code, showing that person to be, and a permit authorizing that person to practice as, a certified public accountant.

(4) The person possesses a valid charter issued by the Institute of Chartered Financial Analysts showing the person to be designated a Chartered Financial Analyst, with a minimum of 16 college semester units, or their equivalent, in accounting, auditing, or finance.”

As you are aware, the Brown Act creates a legal remedy for improperly or illegally taken actions — namely, the judicial invalidation of them upon proper findings of fact and conclusions of law.

Accordingly, we request that the appointment of Ms. Pierce be rescinded and a new action taken to appoint an acting Auditor-Controller Treasurer-Tax Collector which includes 1. a government code citation applicable to the title of the position in question, and 2. a finding that the appointee is qualified under government code section 26945 and 27000.7 at the next available, properly noticed and agendized board meeting.

As provided by Government Code Section 54960.1, you have 30 days from the receipt of this demand to either cure or correct the challenged action or inform me of your decision not to do so. If you fail to cure or correct as demanded, such inaction may leave me with no recourse but to seek a judicial invalidation of the challenged action pursuant to Section 54960.1, in which case I would also ask the court to order you to pay my court costs and reasonable attorney fees in this matter, pursuant to Section 54960.5.

Respectfully yours,

Sincerely,

Mark Scaramella

Anderson Valley Advertiser, Box 459, Boonville, CA 95415

707 895-3016