Mendocino County District Attorney David Eyster is being asked to voluntarily recuse himself from efforts to criminally prosecute the County Auditor/Treasurer or face possible takeover of the case by the California Attorney General’s Office.
The DA’s past run-ins with suspended Auditor Chamise Cubbison, and his role in her eventual suspension without pay by the county Board of Supervisors, represent serious conflicts of interest, and sets the stage for likely civil litigation, warned Cubbison attorney Chris Andrian on Wednesday.
Andrian, a noted Sonoma County criminal defense attorney, said Wednesday the “responsible decision” for Eyster would be to voluntarily recuse himself, or “in the alternative, at a minimum” notify the state AG of his belief that he should step aside.
“If he declines to do so, Ms. Cubbison requests that the Office of the District Attorney of the County of Mendocino be recused from this case,” declared Andrian in a formal motion he filed with Mendocino County Superior Court.
Judge Keith Faulder scheduled a hearing for Dec. 19 on this latest twist in the high-profile Cubbison case.
The bid to formally recuse Eyster caps a long history of conflict between the Auditor’s Office over the DA’s spending practices since he took office in 2011.
The filing of the recusal motion Wednesday again delayed expected entries of not guilty pleas to single felony counts of misappropriation of public funds by Cubbison, and co-defendant Paula June Kennedy, the county’s former payroll manager. At issue in the criminal complaint is the alleged unauthorized payment of $68,000 in extra county pay to Kennedy during the Covid pandemic. Cubbison is not accused of benefitting from the payments.
Eyster, now in his fourth term in office, since then has been caught up in a public brouhaha over his attempt to criminally prosecute an elected official who has challenged his spending, including use of asset forfeiture funds to cover costs of office parties and travel expenses for staff members and their spouses.
The DA is accused of engaging in a political vendetta against Cubbison with the support of some members of the Board of Supervisors, who in 2021 forced the consolidation of two key County offices in anticipation of forming a new Department of Finance more closely associated with the Board and County Administrators.
Cubbison, who like two auditors before her, has repeatedly questioned the DA’s spending practices.
Specifically, Cubbison refused in 2018 to sign off on office reimbursements for a so-called “End of Year Staff Workshop and Continuing Education” dinner at the Broiler Steak House, a popular local dining venue. The Auditor questioned the practices two years in a row, and refused payment in part contending adequate justification was not provided by the DA’s Office. Cubbison said the dinners violated County policies against holiday parties.
Cubbison also requested that the DA officially certify the costs were appropriate use of forfeiture funds, and that the reimbursement claim at the very least be reduced to cover only the 42 county employees who attended, and not their spouses and/or family members.
Not long after Cubbison’s role in alleged unauthorized extra pay for Kennedy during the Covid pandemic came under DA’s scrutiny at the request of County board members and administrators.
Before Cubbison, a veteran County employee, was even formally charged, she reportedly was given the choice by the DA to admit to a misdemeanor violation and resign or face a felony criminal prosecution. She chose to fight the criminal accusations, contending she did nothing wrong nor personally benefited from the extra pay paid to her co-defendant under an alleged agreement with former county Auditor Lloyd Weer.
The criminal case caps a contentious relationship over several years between the Auditor’s Office, and DA Eyster.
“There can be no question that prior to the investigation of Ms. Cubbison and the filing of the criminal complaint in this matter, an adversarial relationship existed” between the elected official and Eyster, according to attorney Andrian’s filing Wednesday.
Andrian said only twice in his 50-year legal career has he sought recusal of a County District Attorney from prosecuting a criminal case.
“It’s not something I am being cavalier about,” said Andrian.
Andrian’s motion, formally filed Wednesday in Mendocino County Superior Court, alleges that Eyster’s conflict of interest is “evidenced by the District Attorney’s written and public opposition to Chamise Cubbison’s appointment to the position of Auditor/Controller, his public statements that she was not qualified for the position, and his attempts to dissolve her position entirely.”
Further, the DA’s past public attacks on Cubbison present a “reasonable possibility it would cloud his ability to exercise the discretionary function of his office in an evenhanded manner.”
Andrian said that Eyster’s tendency to use Board of Supervisors meetings to publicly challenge and undermine Cubbison’s authority by refusing to adhere to the expenditure regulations set forth by her office suggests a lack of objectivity with her criminal case.
Specifically, Andrian’s motion cites what is called the “Broiler Steakhouse Reimbursement Claim.”
Eyster apparently resubmitted the claim for full payment several times, and then finally paid the Broiler Steak House directly but again requested reimbursement from asset forfeiture funds. His repeated claims were denied again by Cubbison.
Then in January 2020 the DA submitted an additional claim for reimbursement for another “End of Year Staff Workshop and Continuing Education” at the Broiler. That too was rejected.
In a separate incident, Cubbison in February 2022 sought an explanation from Eyster on why the DA’s county travel credit card was used to purchase airfare and cover lodging expenses for an extended stay involving a deputy district attorney and her partner. Cubbison rejected the claim because County policy only covers reimbursement for County purposes related to lodging and expenses.
Following a Sheriff’s office investigation into the alleged unauthorized payments to Kennedy, the former payroll manager, Eyster put his own team of investigators on the case. Then in mid-October he filed felony charges against Cubbison and Kennedy.
The County Board of Supervisors within days hastily suspended Cubbison without pay without giving the embattled Auditor an opportunity to present her side of the dispute.
Cubbison has since retained a civil attorney to pursue legal action against the board for denying her due process.
Andrian said the possibility of civil litigation raises more potential conflicts of interests. He said it is likely that Eyster would be summoned as a sworn witness and subjected to examination by Cubbison’s lawyer if the civil case against the Board of Supervisors is filed and taken to trial.
Andrian said the “responsible decision” by Eyster would be to voluntarily recuse himself from the Cubbison criminal case.
If he declines to do so, Cubbison is asking the court to formally recuse Eyster, and the DA’s Office from prosecuting her case.
“Much of the outside stigma overrunning this case would be diluted if an independent prosecutor took over,” said Andrian.
Written requests for comment from District Attorney Eyster, Assistant DA Dale Trigg, and chief investigator Andy Alvarado were not responded to.