The irony of it all.
Chamise Cubbison did the responsible thing in February 2020 by seeking a legal opinion from the County's high priced outside attorney about DA Dave Eyster and his disputed spending practices.
Cubbison, then Assistant County Auditor, warned Morin Jacob, managing partner of the San Francisco law firm of Liebert Cassidy Whitmore, that long-standing issues with the DA had become more contentious.
Cubbison specifically cited the DA claims for reimbursement for a Broiler Steak House dinner that he hosted for 42 staff members and 25 guests. He had labeled the post-holiday gathering a “training session” and insisted the Auditor’s office use state asset forfeiture funds to cover the $2,345 cost. Typically, the money seized from criminal-related activities is used for drug and crime prevention programs including law enforcement training.
It was clear in her letter to Jacob that Cubbison was seeking advice on how to deal with a DA who had waged a decade long battle with the Auditor’s Office over use of asset forfeiture funds, travel reimbursements, and now a so-called evening training session at a popular local steak house.
Cubbison went so far as to tell Jacob that her office had even suggested language the DA could add to some claims which would expedite processing “but the DA refused to consider those suggestions.”
“In nearly all the cases, the response is that the CEO has authorized an exemption, that the DA is an elected constitutional officer, and the Auditor is trying to limit the DA’s budgetary authority, or that asset forfeiture funds are non-county monies and not subject to county policy,” Cubbison wrote.
Eyster had earlier succeeded in winning a special exemption to spending documentation requirements from former CEO Carmel Angelo in his bid to get around questioning by the Auditor’s Office.
Then when former Auditor Lloyd Weer retired, and recommended that Cubbison be named his successor, the DA took the unprecedented step of vehemently opposing her appointment, declaring she was unqualified. He also supported a move by the Board of Supervisors to consolidate two independent County offices lead by elected officials to oversee the county finances: the Auditor/Controller and the Treasurer/Tax Collector. The board’s intention is to eventually abolish both offices and create a new Department of Finance more closely aligned with County administrators.
Jacob in her response to Cubbison’s request for help provided no clarity.
Jacob opined that the Auditor/Controller does not have “general authority” to require the DA to comply with County policies, but then wrote that the office does have “authority, however, to not reimburse claims and can deny claims for purchase of goods or services that are not in conformity with existing county policies.”
Jacob went on: “The District Attorney may use asset forfeiture funds that may fall outside of conformity with county policies but subject to the guidelines outlined by Government Code 11489.”
Jacob conceded that the DA may have to obtain travel authorizations but only for those that are not related to a case, and either involve travel outside of California or are over $1,000.
In short, instead of clarity that Cubbison clearly sought, Jacob had obfuscated the issues between the Auditor’s Office and the District Attorney.
Fast forward three years and it is again Jacob who is center stage in the determination whether the Board of Supervisors could immediately suspend the embattled Auditor without pay before she has even been arraigned and a plea entered to the felony criminal charge Eyster filed against her in mid-October.
Jacob said yes, she could be immediately suspended, and then belatedly offered Cubbison an opportunity to appear before the board two weeks after the fact.
Cubbison attorney Chris Andrian ripped the board, and Jacob, for denying his client due process. He warned civil litigation challenging the board’s action was likely.
There are no surprises here.
Board members, the CEO's office, and the DA were all aware of the questions Cubbison as Assistant Auditor, and others before her, had raised about questionable spending practices and reimbursement requests from the District Attorney’s Office since Eyster took over in January 2011.
Yet Cubbison is the elected official who ended up with a serious criminal charge filed against her, and who got sandbagged without a hearing, or the opportunity to publicly defend herself at the time the Board acted without notice.
Her reputation is in tatters after 16 years of County service. Cubbison was recruited from the County Transportation Department to work in the Auditor’s Office because of her hard work and expertise.
Cubbison for her part set aside her differences three years ago with the District Attorney and sought legal advice in a bid to clear the air. He chose to wage a vendetta and solicited the county’s CEO and Board members to assist.
Cubbison should be praised not condemned for showing responsibility to County taxpayers as a veteran employee and elected official.
Yes, maybe Cubbison is stubborn, difficult, and not easy to work with, according to members of the County’s entrenched bureaucracy.
So what? She is, after all, an auditor.
DA Eyster likes to defend his sometimes bully boy behavior by declaring the public wants a “tough prosecutor.”
Perhaps the blowback from the Cubbison case suggests the public favors an equally tough, no-nonsense Auditor too.
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Letter from Chamise Cubbison to Outside Attorney Morin Jacob
Morin I. Jacob, Managing Partner
Liebert Cassidy Whitmore
135 Main Street, 7th Floor
San Francisco, CA 94105
Feb 2, 2020
Dear Ms. Jacob:
In follow up to our phone conversation this week, the Auditor-Controller is seeking a legal opinion regarding the authority of Auditor-Controller to require the District Attorney to comply with County Board of Supervisors' Policies, Auditor-Controller procedures, and generally accepted accounting principles established by the Government Accounting Standards Board.
Due to staff changes in the Auditor-Controller's (AC) office, purchasing practices and policy compliance have come under more consistent review. There are several types of Claims submitted by the District Attorney that are being more closely monitored, sometimes resulting in those Claims being denied or in requests for additional supporting information. Some similar Claims may have been paid in the past. More recent Claims have been denied with explanation.
The issue became more contentious with the denial of a Claim (Item 1) to the Broiler (local steak house) for a 2018 End of Year Staff Workshop and Continuing Education dinner. When AC staff requested supporting documentation (as would be required for any other department), it became apparent that 42 attendees were County employees and 25 were general members of the public or employee spouses and/or family members and that the event did not comply with County Policy #18 or #1. AC staff also questioned whether it was an appropriate use of Asset Forfeiture funds. To which DA staff that there are no guidelines for State Asset Forfeiture funds. The AC asked the DA to certify that it was an appropriate use of the Forfeiture funds and requested
“Special Fund” or Asset Forfeiture fund, but would likely not be paid under the current review team as they do not comply with County Policy #18 or #1. It appears that the DA is planning to cash those checks at the County Treasury and reimburse whoever paid the expenditure or pay the vendor directly. It appears to be an attempt to get around the AC. The past items do not appear to meet the Government Code specified allowable uses of DA’s “Special Fund” (Item 9). Which causes the AC to be concerned that the DA does not ensure that expenditures are properly allowable for certain types of funds.
The AC has suggested language that could be added to some Claims that might assist the AC is allowing some of the Claims to be processed, but the DA refuses to consider those suggestions.
In nearly all cases, the response is that the CEO has authorized an exemption, that the DA is an elected constitutional officer and the Auditor is trying to limit the DA's budgetary authority, or that Asset Forfeiture funds are non-County monies and not subject to County Policy.
The Auditor-Controller is looking for a legal opinion which addresses whether the District Attorney, and/or his staff, should be required to provide supporting documentation, including Travel Authorizations, for expenditures and/or reimbursements paid with any County funds, inlcuding General Funds or Asset Forfeiture funds, is subject to County Board of Supervisors' Policies and if the Auditor-Controller can require the DA to comply with the procedures that other departments are held to, as well as GASB's generally accepted accounting principles. We would appreciate the opportunity to review your draft opinion before a final opinion is provided.
Please let me know if you have any questions regarding the information provided or if you need additional information. I can be reached at 707-234-6871 or cubbisoc@mendocinocounty.org
Thank you for your time and assistance in these matters.
Sincerely,
Chamise Cubbison, Assistant Auditor-Controller
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