Fixing Problems: Starting With The Cubbison Affair

Before getting down to the business at-hand today, I want to let you know that all politics aside, I am personally embarrassed to live and work in a county that is as dysfunctional as this one appears to be.

Our elected representatives and their staff far too often flummox themselves and disrupt the orderliness of the governing process by creating problems seemingly out of thin air. Many cases on point, but we’ll just talk about one today.

At the last BOS meeting on Oct. 17, the county’s ever-escalating fiscal dilemma was propelled even further into chaos when the Supes unanimously suspended, without pay or benefits, Chamise Cubbison, the elected Treasurer-Tax Collector/Auditor-Controller. Both Cubbison, and Paula June Kennedy, the county’s former payroll manager, are facing charges they allegedly misappropriated $68,106 in public funds beginning in 2019. In fact, on the same day of the BOS meeting, Cubbison and Kennedy were in court awaiting their arraignment. However, the arraignment was postponed until Oct. 31 to provide Ms Kennedy the opportunity to arrange representation by the Public Defender’s Office.

What I said last week was the Board should have postponed taking any action against Cubbison pending the completion of the preliminary hearing. That way they would have had the opportunity to review what kind of evidence the D.A. was relying on, and whether the judge found it sufficient to proceed to trial. Who knows, the judge may have found the D.A. had insufficient evidence to hold Cubbison over for trial.

Additionally, Ms. Cubbison has both substantive and procedural rights that were denied her by the BOS. At minimum, she was entitled to the opportunity to appear before the Board and respond to the proposed action prior to the vote being consummated by the Supes. Cubbison was never put on proper notice that the Board was planning to take action by suspending her from office. In fact, that very action item was only placed on the agenda subsequent to the Board opening the meeting on the morning of the Oct. 17 meeting. The Board had an affirmative obligation to notify Cubbison that her tenure in an elected position was in imminent peril.

The Supervisors took on the role of a constitutional wrecking crew in their rush to judgment on Cubbison..

Evidently, their pricey San Francisco-based law firm, pinch-hitting for the nine lawyers in the Mendocino County Counsel’s Office, re-advised the Supervisors that the very same advice that I offered them (at no charge, of course), was the required remedial action to clean up the constitutional walloping occurring at the Oct. 17 meeting.

So at the upcoming Board meeting this Tuesday, Oct. 31, the Supes will attempt to cure ill-advised, illegal action taken at the earlier meeting.

Here’s the proposed corrective action to be taken at the meeting:

“4e) Discussion and Possible Action Regarding Auditor-Controller Treasurer Tax Collector’s Suspension: Board of Supervisors will Provide Opportunity for Auditor-Controller Treasurer Tax Collector to Present Any Information in Response to Suspension Pursuant to Government Code Section 27120, and May Take Action in Response to Presentation.”

I shall now very briefly offer another piece of free legal advice to the Supervisors.

The legal advice offered by the Bay Area law is at best the most elastic of stretches. There is no relevant case law to support reliance on Government Code Section 27120 for the action taken in the Cubbison affair.

Section 27120 reads as follows: “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.”

Dispensing with all of the deep weeds growing around the legislative history of Sec. 27120, it is an antiquated provision found in the 1879 California Constitution that appears to have been mistakenly carried forward when the State Legislature in 1943, acting upon a 1942 statewide initiative, “modernized” and updated the 1879 California Constitution. That provision reflected on a county government structure and organization that no longer existed in 1943.

A new Government Code was created in 1943, and one of its provisions, Section 1770, addresses one aspect of the Cubbison affair:

“Division 4. Public officers and employees [1000 – 3599]; (Division 4 enacted by Stats. 1943, Ch. 134. )l Gov. Code Section 1770. An office becomes vacant on the happening of any of the following events before the expiration of the term:

(h) His or her conviction of a felony or of any offense involving a violation of his or her official duties. An officer shall be deemed to have been convicted under this subdivision when trial court judgment is entered. For purposes of this subdivision, ‘trial court judgment’ means a judgment by the trial court either sentencing the officer or otherwise upholding and implementing the plea, verdict, or finding.”

Another option for Mendocino County centers on the suspension from office issue. Currently, the County has no ordinance or resolution covering this type of authority.

Again without a deep dive into muddling waters over a county’s status as a general law or charter county, I believe Mendocino has the authority to establish a local provision addressing the suspension from office issue.

Here’s an example of such a provision established by Alameda County:

“Sec. 20.5:The Board of Supervisors shall have the authority to suspend an elected county officer who has been charged by information or indictment with a felony related to misconduct in office, pending the trial of such charges. Such authority to suspend shall be exercised by the adoption by resolution of the Board of Supervisors of a declaration of intention to suspend such official, which declaration shall set forth the grounds upon which such action is proposed to be taken and specify the time and place of the meeting at which the Board of Supervisors will meet to consider such action, which hearing shall be held not less than 5 days after the adoption of such resolution. The Clerk of the Board of Supervisors shall immediately furnish a copy of such resolution to such officer by delivering it to him personally, or by mailing a copy thereof by registered mail to his official business address and to his residence address. If the charges are sustained by not less than a majority of the members of the Board of Supervisors, such officer shall be suspended forthwith without compensation pending the trial of such charges, and the Board of Supervisors shall appoint a qualified person to discharge the duties of the office during the period of such suspension, and require the person so appointed to furnish an official bond in an amount to be fixed by the Board of Supervisors. (Amendment ratified June 7, 1966. In effect February 27, 1967.)”

Hopefully, county officials will accept this advice in the spirit it is given. That is, it’s time to stop causing problems and start solving them.