The integrity of suspended Auditor Chamise Cubbison, facing a felony criminal charge of misappropriation of public funds, is being unfairly questioned, according to two former county officials.
Duncan James, a former county District Attorney and head of a leading local law firm, said he is reviewing the state provision used by the Board of Supervisors to immediately suspend Cubbison without pay earlier this week even though she has not yet been able to enter an expected not guilty plea. After a preliminary review of the government code the Board of Supervisors used, James said he wonders if it is applicable given the actions cited in the criminal complaint were in her role as Auditor and not Treasurer, which is the role the code specifically addresses.
“I seriously doubt being charged with a criminal offense makes it possible for the Board of Supervisors to suspend an elected official,” said James.
Chris Andrian, a Santa Rosa attorney representing Cubbison in the criminal case Eyster is pursing against the auditor, is too questioning the government code provision the Board of Supervisors used to take the extraordinary step of suspending an elected official without pay before the accused individual has a case adjudicated. Andrian is having an attorney who is considered a top labor law expert to review Cubbison’s case.
“In addition to defending her in the criminal matter, there may be a civil lawsuit here,” said Andrian.
James once ran for state Attorney General as a Republican and is widely respected statewide as a skilled trial attorney in civil and criminal cases.
James’ law firm has successfully represented Mendocino County Sheriff Matt Kendall, who has had his own struggles with the current board. The James law firm also has successfully challenged the roles of other public agencies who have become embroiled in disputes with each other.
James’ questions are significant because his firm gave current District Attorney David Eyster his start in private practice locally. Eyster after having been fired in 1996 by former DA Susan Massini after a celebrated dust up, entered private practice in Sacramento, and then returned to Ukiah to make a run in 2009 for DA here.
James said the irony is that the government code used against Cubbison, unless challenged, could be used against Eyster and any other elected official. “Be prepared, the board could come for you,” said James.
James said he personally respects the opinion of former county Treasurer Shari Schapmire and others who have testified to the integrity and work ethic of Cubbison. The suspended Auditor found herself in the cross hairs of DA Eyster and board members following a forced consolidation of county financial offices two years ago.
Schapmire on Wednesday said, “In my experience directly interacting with Chamise Cubbison, I found her to be competent, meticulous, and dedicated to her duties.”
“That being said, others often found her to be abrupt, direct, and often times difficult,” said Schapmire.
“Shari is herself a person of integrity. I listen to what she has to say,” said James.
Schapmire, a 40-year county employee, stepped down early because of the board’s insistence, with Eyster’s backing, to consolidate the Auditor-Controller and Treasurer-Tax Collector offices into one.
In a scathing letter of resignation written in December 2021, Schapmire told the Board of supervisors that their actions leading up to the forced consolidation would likely create chaos driven by politics.
“The actions of the Board over the last several months have been to force Chamise Cubbison to fail, to drive her from her role, and to leave the Treasurer-Tax Collector to pick up the scattered pieces,” wrote Schapmire.
Schapmire called the board’s consolidation plan “severely flawed.”
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Auditor’s Suspension Challenged?
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 us 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 a 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 was 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 a constitutional claim called the presumption of innocence.”
Board members and their outside attorney, Morin Jacob 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 2022 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 in late August of 2021 to denigrate Cubbison’s qualifications, and successfully block her appointment as interim department head before her eventual election.
Andrian and Cubbison’s 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.”
“…the results of the audit may or may not be used to make substantive changes…” Put your money on ‘not’.
Great report, thanks. However, Sheriff Kendall’s role in all of this seems to be missing. According to DA Eyster, Sheriff Kendall initiated the investigation of Chamise Cubbison, at the request of an “outside individual”. It seems a bit strange that this “outside individual” would go to Sheriff Kendall instead of DA Eyster regarding a suspected breach in conduct by a county employee. It is all convoluted, and there are many fingers in the current fiscal pie. How does the hugely inflated figure for funding for the new wing at the jail figure into all of this, for instance? Who is on duty to check those figures? There is also the overrun on the already exorbitant cost of the new courthouse, again seemingly unchecked by knowledgeable sources.
The Courthouse is under control of the State Courts and the County has no role in the funding or any other issues with the project.
The proper way for Eyster to handle this situation is to ask one of the neighboring DA’s to head the investigation since he clearly has a strong opinion about Cullison. Of course his inflated ego would not let him do that.
“In addition to defending her in the criminal matter, there may be a civil lawsuit here,” said Andrian.
You bet. And how culpable will “outside attorney” Jacob be when the bill comes due?
I’m sure I’m not the only reader who has lost track of the wrongful termination suits against the county. How about a “scorecard” article giving brief coverage of all those suits pending against the county? Maybe even a list of links to previous cases.
There are four wrongful termination cases pending against Mendocino County at the moment, as far as I know. Former Ag Commissioner Harindar Grewal, Former Public Health Director Barbara Howe, former Probation Officer Amanda Carley and a former Board Clerk whose name escapes me at the moment. Last we heard Grewal’s case is still pending. He is no longer represented by Duncan James/Doug Losak and has gone pro per, and his trial date has been pushed further and further out as settlement conferences come and go. We have lost track of the Barbara Howe case because it went into federal court where it’s hard to find even minimal info. The Amanda Carley case, where she says she was wrongly put on the Brady List and subsequently couldn’t carry a gun as part of her Probation Officer job, and then was forced to resign from Probation is still pending as well. The Board clerk’s (discrimination?) case went to federal court as well. As far as we know all these cases are being handled on the Mendo side by outside law firms, not in-house County attorneys. We do not have the time or resources to research the detailed status. It would be nice if those involved or their attorneys would keep us informed, but in general these lawyers don’t make many public statements and they advise their clients to keep mum. Hundreds of thousands, if not millions have been spent by Mendo on outside attorneys in these cases which, we gather, is covered by the County’s general liability insurance. Eventually the rates will go up, of course. But that typically takes years and is also hard to follow.
This pattern of forcing out people who tell the CEO/Board things they don’t want to hear has been going on since before Carmel Angelo moved over to the big leather chair on Low Gap. She forced out countless Department Heads and Managers with bullshit accusations only to give them big checks, have them sign NDAs and keep the public in the dark. Just look at the revolving door over at County Counsel for the last 15 years or so…force out any lawyer who tells you “that’s not legal” until you get the answer you want.
Schapmire, Weer and Meredith Ford were the last adults in the room. It’s all suckups and yes men now..