Fire, Aim, Ready

In a transparent attempt to cover their collective behinds, the Supervisors gave suspended Auditor-Controller Treasurer Tax Collector Chamise Cubbison a technical opportunity to respond to her suspension — after she was suspended. It was obvious that the board's expensive outside counsel had advised them to take this embarrassing after-the-fact step to make it seem like due process was served when it obviously wasn't. 

Outside attorney Morin Jacob told the Board that the Tuesday agenda item was "an opportunity for Ms. Cubbison to respond.” “Now is the time to present that information to the Board," Jacob said to Ms. Cubbison. But: No witnesses, no questions of the Board.

No, Ms. Jacob, now is NOT the time. The time would have been two weeks ago, not that this Board would have had any interest in it. They had their minds made up well before the actual suspension.

Cubbison's attorney, Sonoma County heavyweight Chris Andrian, asked the outside attorney: “Why wasn't this [opportunity] done in the first place? She was entitled to notice before you took the action you took previously. She was not given a notice. What was the authority to proceed as you did?”

Jacob: “I will not be responding to any questions. The objection is noted.”

Andrian then took off talking about due process, the presumption of innocence, saying that  elected officials cannot be removed without cause or an opportunity to be heard. “There was no evidence-taking procedure afforded to Ms. Cubbison," said Andrian, adding that she retains a presumption innocence. “These charges occurred before she was an elected official. The alleged acts occurred when she was acting Auditor-Controller, not Treasurer. An elected official cannot be removed from office for conduct that occurred prior to their election.  You cannot suspend an elected official without due process for an act they committed prior to their election. There is no act that has been alleged that occurred since her election as Treasurer [after the offices were consolidated]. You are removing her as Treasurer for something that occurred before she was Treasurer. The law is clear, you cannot do that.”

Andrian said that “most if not all of her staff support Ms. Cubbison and her integrity and her ability to run the office.”

Andrian described the legal case against Cubbison as “a very weak case.” He also made it clear that will probably be a damages claim made after the dust settles. “When you take preemptive action, when you decide you are going to fire somebody, or take his or her job away — I'm going to suspend you — before they have their day in court you are creating damage to her reputation without her ever having the opportunity to respond to these allegations. She will respond to them in court.”

Andrian compared the Board’s suspension to a legal restraining order “when there is an allegation that there is potentially irreparable harm that will occur to somebody if they don't take that action. If you don't do this today, that bank account could be cleaned out. The criminal case against Ms. Cubbison, in the light most favorable to the prosecution, not to the defense, asserts that at no time did Ms. Cubbison benefit from any of this. She got no personal benefit. No money went into her pocket.”

"There is no assertion in this case that the people of Mendocino County were at any risk of her taking money and running,” continued Andrian. “As if they just discovered there was a bank account of $100,000 and we think she took it and we had to stop her. A court could issue a temporary suspension pending a ruling of the court. What you have done here is in effect become judge, jury and executioner without giving Ms. Cubbison the opportunity to present her case, call witnesses, and to show you that the allegations are false!”

Andrian then got to the motive behind the charges and the suspension: 

“As you know, Ms. Cubbison has had an ongoing dispute with the District Attorney who filed this case. So there are personal issues between him and her. Doing her job. Everyone's worst fear is they get the notice from the IRS that they are about to be audited. What is the Auditor's job? The Auditor's job is to get after you and say, what about this deduction? You might say, well I thought I could take that. But that's what Auditors do. It is designed to be a thorn in your side. If they are doing their job. There were things Ms. Cubbison was questioning about the prosecutor. One of the things we have to look at is… I asked Mr. Eyster if he should even be involved in this case — whether it's appropriate for him to be involved. I think he understands that there may be a legitimate issue here because they have this kind of fiscal relationship where she may call him to task. He may object. This feels more political than a legal due process."

Andrian also questioned the legal basis of the suspension. "The board should seriously consider and have your counsel look at the law and see if what you did this was within the law. I have consulted with several people who specialize in this subject and they all agree that this action probably should not have been taken the way you did it. I ask you to consider rescinding that action.”

"There are ways if someone wants to remove an elected official. The law frowns on the idea of forfeiture of elected office, which is what you have done. In effect you have said: You are out. You have no chance to be heard. You have overstepped your bounds. We looked at the law here and there has to be cause found and an opportunity to be heard before an elected official is dismissed  from his or her job.

"She is an elected official, as you are elected officials. You wouldn't want to be summarily dismissed because somebody made an accusation against you. Can I have my day in court? Can I come and tell you my side of the story? Can I call my witnesses? Can I do all that? You have to wait and see what the process does.

"I know Ms. Cubbison is supported virtually universally by every member of her staff who stand behind her and speak to her integrity and how hard she has worked and what a difficult job she inherited. These accounts referred to this morning [by appointed acting replacement Sara Pierce] have been known by Ms. Cubbison. She was the one who brought it to the attention and was dealing with the banks. There are no lost accounts. No unknown accounts. These are all things the staff told me they knew about and she knew about them and was dealing with it. The new person said, she discovered this. That's false. That's not true. You as elected people should know how easy it would be for somebody to make an accusation against one of you. You say, I did not do that. Well, we are firing you from the Board tomorrow without a chance to be heard. That's what you did to Ms. Cubbison. You gave her no opportunity to be heard. So I ask you to reconsider what you've done.”

Trying to put more lipstick on the pig, attorney Jacob summarized: “The request this afternoon as I heard it is that the board rescind the suspension that it voted to approve on October 17. On October 17, notice was provided to Ms. Cubbison regarding the suspension and notifying Ms. Cubbison [after the fact] that she would have the opportunity to appear this afternoon to present any information in response to the suspension at this meeting. That has been done this afternoon through her counsel. So I ask the board, Does the board wish to discuss or take any action in response to the presentation from Ms. Cubbison's representative?”

County Counsel Christian Curtis reminded the Board that they should take public comment first.

Val Muchowski noted that Cubbison was elected with more votes than the DA. “Who will do the independent audits now? Who is watching the money? We have a right to be represented by an elected auditor, not by someone selected by the board.”

Former District 2 Supervisor Candidate Estelle Clifton wanted to know, What's the rush? “Other than it seems to be in-line with the some members of the board trying to not support the independent fiscal office. Obviously the combination of the offices was not done in a thought out way. We were already down a lot of important staff and then lost additional staff. This was callous action that assumed guilt in advance. We had an outstanding Auditor that we elected. This has become personal. Suspending someone without pay is to make that judgment as well. I ask that you put her back in this office and work with her and support her office and restore her pay and salary.”

Terry Poplaski, member of the Civil Service Commission, mentioned tangential problems with the Civil Service Commission having only three members. But he concluded, “I think you need to think about doing your job.”

Former KZYX news person Annie Esposito summarized the opinion of lots of locals who are following the situation: “We don't want a new finance department under this Board of Supervisors. We want to have our elected auditor back and we want you to let her audit.”

First District Supervisor candidate Carrie Shattuck said, "The Board overstepped its bounds not giving Chamise a voice the day you suspended her. This has been the board's objective all along, to get a Department of Finance and consolidate all the power in the CEO's office. And I don't agree with that — at all."

Several others speakers objected to the removal of an elected official like this. "It's Shocking," said one commenter.

Assistant Auditor Controller Megan Hunter bravely spoke up. “If anyone has worked in finance, they would know it's not an easy job. I'm appalled at how [Ms. Cubbison] has been treated this entire time. A lot of what has gone on and what is going on is a trickle-down effect from years and years of previous Auditor Controllers and other people. She is being blamed for things that she has no control over. I don't understand why the Auditor Controller at the time [Lloyd Weer] is not being called into question because he was in charge of the office at the time, not Chamise. It was his job to be fair and oversee everything that was going on. It's very confusing that the person who was not the elected official at the time is being held accountable for charges. Ms. Cubbison is a very diligent hard worker. She's in there early and out of there after almost everyone else in the office. She's one of the most honest people I've ever met. She is by the book. She does her job. She has the capacity to retain so much information, it's unbelievable. She cares about the people in this County and she cares about her job and takes it very seriously.”

Mendocino Observer Editor/Publisher Jim Shields told the Board: “Your integrity is at stake here today because you allowed yourself to get pulled into a petty bureaucratic squabble between and among the DA and three Auditors. This did not involve Cubbison, but two previous auditors, Meredith Ford and Lloyd Weer. They were squabbling about the expense reimbursement submitted by the DA and his handling of asset forfeiture funds. These were all legitimate exercises and the duties and responsibilities of the Auditor when those things occurred.”

Outside Attorney Jacob then gave the Board their belated legalistic opportunity to reconsider: “Now is the board's opportunity to either discuss or take any action in response to the presentation from Ms. Cubbison this afternoon.”

Supervisor John Haschak kinda tipped everyone's hand by asking, “With the suspension that we did at the last meeting two weeks ago is there any problem from your point of view about doing that before Ms. Cubbison had a chance to appear before us?”

Of course there is. But the Board’s outside attorney wasn’t going to admit as much in open session.

Jacob: “That is a question that I'm happy to respond to in a confidential setting. But I won't do that in an open setting this afternoon."

Board Chair Glenn McGourty, clearly uncomfortable with having to listen to things he didn't want to hear was glad to get it over with: “There being no further comment, I call this item done.”

PS. Unfortunately, nobody mentioned my Brown Act complaint which claims that the Board didn't follow the government code section they cited when they suspended Ms. Cubbison on October 17 either.