Kangaroo Looking For A Court

Here’s the latest installment in the super-politically charged, three-ring legal circus that is the Chamise Cubbison affair.

At the Oct. 17 BOS meeting, the County’s ever-escalating fiscal dilemma was propelled even further into chaos when the Supes unanimously suspended, without pay or benefits, Auditor-Controller/Treasurer-Tax Collector Cubbison, who stands accused of allegedly misappropriating $68,106 in public funds.

This week, Cubbison, who was not given the right to be heard and respond to the allegation on Oct. 17, was belatedly offered the opportunity at the BOS meeting on Tuesday, Oct. 31. Although ably and fiercely represented by her lawyer at Tuesday’s session, it left supervisors unmoved and Cubbison remains suspended pending the trial moving forward, assuming the twice postponed arraignment results in Cubbison actually going to trial, which is no guaranteed outcome at this juncture.

Following the conclusion of Cubbison’s “hearing” on Tuesday, social media was afire with comments from a mostly aroused and angry public supporting Cubbison. 

Here’s one example:

“BOS item 4e involved reconsideration of the suspension without pay of Auditor Cubbison. It was an absolute shock to see a SF-based lawyer represent herself as BOS counsel and in effect assume [the Board of Supervisors] Chair role and dictating conditions for the dealing with this item. Cubbison stood next to her lawyer as he basically informed the Board that they violated statutory requirements for due process related to getting rid of elected officials. He made other relevant points as did several others from the audience. Sadly, the board just moved on to the next item without even discussion on reconsideration. That’s a shock given they were informed also by another lawyer that the actual code related to removing elected officials had superseded the old code drug out by the SF lawyer …” —Mike J

For the record, I’m the “another lawyer” referred to by Mike J.

I’m not an attorney, but when I was in the labor movement I was allowed to practice labor law, administrative law and code, and airline regulatory law at the federal level. Two of the primary restrictions placed on me were I could not hold myself out as an attorney at law, nor could I solicit clients. I had a 95% win record in arbitration cases, so I was somewhat competent acting as a non-bar attorney.

Anyway, I addressed the Supes at the Oct. 31^st meeting and told them their integrity was at stake because they had allowed themselves to be pulled into a petty bureaucratic squabble between and among the DA and three different auditors: Meredith Ford, Lloyd Weer, and Ms Cubbison over the DA’s dubious demands for certain expense reimbursements and questions regarding his handling of certain asset-forfeiture funds. I said the record is undisputed that all three auditors were doing their jobs performing their sworn duties in taking their respective actions regarding the DA’s expenses and asset-forfeiture funds. The DA was clearly out of line.

By the way, I’m still waiting for somebody to explain why are we on the hook now for this outside, expensive San Francisco law firm’s representation and advice when we have a County Counsel’s Office entrenched with nine lawyers. I told the Supes their outside counsel cited an outdated provision, Government Code Sec. 27120, in justifying the Board suspending Cubbison from office on Oct. 17: “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.”

GC Sec. 27120 is an antiquated provision that appears to have been inadvertently carried forward when the State Legislature in 1943, acting upon a 1942 statewide initiative, “modernized” and updated the 1879 California Constitution. The State Legislature’s modernization sessions resulted in “An act to establish a Government Code, thereby consolidating and revising the law relating to the organization, operation, and maintenance of a system of State and local government, and repealing acts and parts of acts specified herein.” That old provision, Sec. 27120, reflected back on a county government structure and organization that no longer existed in 1943. Likewise, it designates only the treasurer position as being subject to suspension. I believe everyone is in agreement that Cubbison’s alleged wrongful acts were committed in her role as “acting auditor.”

A new Government Code was created in 1943, and one of its provisions, Section 1770, addresses the different ways in which an elected office becomes vacant, but I’ve included only the relevant event pertaining to 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.”

With the exception of the antiquated GC Sec. 27120, there is no provision addressing the authority of a Board of Supervisors to suspend an elected officer pending their adjudicated conviction.

It’s more than obvious that the clear intent of the state legislature back in 1943 was to prevent the very kind of rash rush to premature judgment that occurred 80 years later in Mendocino County when five supervisors peremptorily unseated a duly elected official who has yet to be even arraigned in court, let alone “convicted of a felony or of any offense involving a violation of his or her official duties.”

Your guess is as good as mine in attempting to discern why five supervisors are marching in lockstep to set up the taxpayers of this county to continue paying for what promises to be ongoing, significant legal expenses, which doesn’t include prospective damages if Cubbison sues if she is found not guilty as charged.

This is certainly one time when the Supervisors should have taken no action, made no decision, and chose to select the safest, least risky, most viable option available: Follow the damn law.

Unfortunately, as I’ve said before, this sorry and embarrassing spectacle is a long way from being over.

(Jim Shields is the Mendocino County Observer’s editor and publisher, observer@pacific.net, the long-time district manager of the Laytonville County Water District, and is also chairman of the Laytonville Area Municipal Advisory Council. Listen to his radio program “This and That” every Saturday at 12 noon on KPFN 105.1 FM, also streamed live: http://www.kpfn.org)