Cubbison Fights Back

When suspended Mendocino County Auditor Chamise Cubbison appears in court on Tuesday to enter an expected not guilty plea to a felony charge of misappropriation of public funds, it is not just her handling of internal money matters that will be center stage.

District Attorney David Eyster’s own alleged misuse of public funds regarding staff dinners and travel expenses is also under intense scrutiny, emerging as a key element in legal efforts to bar the DA from personally prosecuting another elected official that he has battled with for years over office spending. 

Mendocino County Superior Court Judge Keith Faulder will hear arguments Tuesday to recuse Eyster from prosecution of the suspended Auditor. Cubbison and co-defendant Paula June Kennedy, the County’s former payroll manager, are finally expected to enter pleas to the charges the DA has leveled against them. Their plea entries have been delayed since October because of wrangling over Eyster’s role in Cubbison’s prosecution.

In a new court filing Friday, Cubbison’s attorney Chris Andrian argued that “Mr. Eyster’s retaliatory behavior toward Ms. Cubbison clearly demonstrates that he has an axe to grind with her,” and that he is attempting to prosecute the Auditor for “the same misuse of public funds she alleged of him.”

For Andrian, a noted Sonoma County defense attorney, the filing was a stinging rebuke to the state Attorney General’s decision announced this past Tuesday not to intervene in the case. The AG’s San Francisco office issued an opinion that it found “no actual proof” of conflict on Eyster’s part, and that the DA has not subjected Cubbison to “unfair treatment.”

Andrian said he will ask Judge Faulder, who has the final decision, to formally recuse Eyster at Tuesday’s scheduled court hearing from prosecuting the criminal case. 

Andrian said there in fact is evidence of Eyster’s conflict of interest based on his “prior treatment of Ms. Cubbison,” and his “retaliatory decision to prosecute Ms. Cubbison for the same misuse of public funds she alleged of him.”

Specifically, Andrian cited the DA’s demand of Cubbison in 2018 and 2019 to use public asset forfeiture funds to cover staff dinners at the Broiler Steak House for dozens of employees, and their guests. Eyster labeled the dinners “End of Year Staff Workshop and Continuing Education.” Cubbison questioned the public picking up the $2,400 tab for all dinner guests at a so-called office training workshop and said at most the County should only reimburse for actual costs associated with DA employees.

Andrian also cited the time Cubbison drew attention to the DA’s alleged personal use of County funds when she challenged the validity of his reimbursement claim for the travel expenses of a deputy prosecutor, and her live-in partner, that included hotel, airfare and conference costs that totaled in excess of $1,000.

“In response to Ms. Cubbison’s shining a light on his misuse of public funds, Mr. Eyster began a campaign against Ms. Cubbison and her job, culminating in the filing of a criminal complaint against Ms. Cubbison alleging the very same misuse of public funds.”

Andrian said Eyster’s behavior toward Cubbison “goes beyond creating a perception of improper influence.”

“He took action against her after she refused to bend to his will and accept his reimbursement claims,” charged Andrian.

Andrian said Eyster needs to be removed as prosecutor, and the Cubbison case independently reviewed and judged on its own merits.

Eyster has engaged in running disputes with the Auditor’s Office since 2011 when he took office. In 2021, he took the extraordinary step of publicly denouncing Cubbison when she was up for appointment as acting Auditor because of the early retirement of then Auditor Lloyd Weer. The DA told the Board of Supervisors she was unqualified, and that he personally favored a board plan to force a controversial consolidation of the county’s two independent financial review offices – Auditor/Controller and Treasurer/Tax Collector – in hopes of eventually creating a new Department of Finance more closely aligned with board offices and the County Executive Office.

Cubbison, a 16-year veteran County employee, in 2022 was elected by County voters to lead the newly consolidated offices, to the chagrin of Eyster and County board of supervisors members who had publicly questioned her abilities.

New court filings show that in September 2022 County CEO Darcie Antle and County Counsel Christian Curtis met with Eyster and outlined their suspicions about the extra pay made to Kennedy beginning three years earlier. A Sheriff’s investigation was launched, but it was more than a year before Eyster chose to file felony charges against Cubbison and Kennedy. Before he acted, the DA offered to file only a misdemeanor charge against Cubbison if she resigned as Auditor.

Cubbison chose to fight the accusations, contending she did not personally benefit from the extra pay. Attorney Andrian said there is no doubt the pay was for work Kennedy completed under difficult circumstances during the pandemic. “My client did not receive one penny of the money paid out,” said Andrian.

“Can there be any doubt that District Attorney Eyster has an axe to grind against defendant Cubbison?” argued Andrian in his submitted written argument to Judge Faulder.

Eyster, in a declaration filed within two hours of last week’s AG opinion, outlined for the first time his criminal case against the Auditor, and the county’s former payroll manager.

The DA accused Cubbison of using an obscure county pay code to allow Kennedy to collect $68,100 in extra salary for work done during the Covid pandemic. Eyster claims the code was used in hopes of not drawing attention of county administrators or the board, neither of whom had authorized the extra pay.

 Cubbison claims the extra pay deal was reached between retired Auditor Weer and Kennedy before she won election to be his successor. Eyster counters in his declaration that Weer and Kennedy in statements given to investigators deny they engaged in the extra pay “scheme,” and that it was Cubbison who solely allowed the unauthorized payments.

Cubbison and attorney Andrian contend what is really behind the high profile criminal case is a vendetta waged by Eyster after she repeatedly questioned his office’s spending. The DA has tangled with three different Auditors over spending related issues since he took office in January 2011.

Cubbison, when acting as Assistant County Auditor, took her ongoing concerns about the DA’s spending practices to a San Francisco law firm hired by the County Board of Supervisors for advice on internal issues.

In February 2020 Cubbison warned Morin Jacob, managing partner of the Liebert Cassidy Whitmore law firm, that long-standing issues with Eyster were becoming more contentious. It was clear in Cubbison’s detailed letter to the firm that she 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 for staff and their guests at the iconic local steak house.

Jacob’s response lacked the clarity that Cubbison sought, so she wrote again. Cubbison again noted discrepancies between the legal advice offered and existing county policies. Cubbison received no response from attorney Jacob to her follow up.

Instead, a few months later, the Board of Supervisors suddenly amended county travel policies to specifically exempt the DA from usual procedures and changing the authorities of the Auditor’s Office. Cubbison said as a result the County is likely no longer in conformity with federal IRS requirements “as they relate to the DA’s Office travel.”

The Cubbison criminal case has triggered a public uproar, promising a lengthy and costly legal struggle for taxpayers if it goes to trial. The Board of Supervisors also faces potential legal challenge to its arbitrary suspension of Cubbison without pay before she was even given an opportunity to publicly speak in her own defense. 

Cubbison was locked out of her office after Eyster filed his criminal charges, and personally escorted out of the County’s buildings by CEO Antle and County Counsel Christian Curtis, according to internal documents. A few days later, the board voted to suspend her without pay before she or her attorney had a chance to offer any public explanation.

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Attorney General Doesn’t Support Eyster’s Recusal From Cubbison Case

State Attorney General Rob Bonta has dismissed a defense bid to disqualify Mendocino County District Attorney David Eyster from prosecuting former county Auditor Chamise Cubbison because of the DA’s widely publicized past conflicts with her office.

The AG’s position, outlined in a 12-page court filing, puts the onus on Mendocino County Superior Judge Keith Faulder to make the decision. Arguments in front of Faulder could occur as early as Tuesday when Cubbison and a co-defendant are scheduled to enter pleas to a single felony charge of misappropriation of public funds.

Cubbison’s attorney Chris Andrian, a noted Sonoma County criminal defense lawyer, said he understands the AG’s legal arguments, but he questioned whether the state office understands the “toxicity” surrounding a high profile local case laced with politics.

Andrian said the AG’s office does not grasp the enmity that exists between the two elected Mendocino County officials, let alone “feeling the pulse of the community.”

Within two hours of the AG’s decision, Eyster formally filed a court declaration outlining what’s behind his planned prosecution of Cubbison, including claims that Sheriff’s investigators suggested more possible felony charges against the embattled auditor than previously disclosed. 

Eyster also said Cubbison’s co-defendant Paula June Kennedy, the County’s former payroll manager, and retired Auditor Lloyd Weer have denied participating in an alleged scheme to use an obscure County earnings code to obtain about $68,000 in extra pay for Kennedy. They accuse Cubbison of using the code to get around possible review by the county’s Executive Office, according to the DA’s declaration.

“Cubbison told her [Kennedy] to use the code but to keep the amount of the code authorized payments also inputted into payroll report under $1,000 so it would not get flagged by the CEO’s Office for review of the use of the code or the unauthorized payments,” according to Eyster.

Cubbison and Kennedy are expected to enter not guilty pleas at a hearing scheduled for 9 a.m. Tuesday in front of Judge Faulder. The plea entries have been delayed for two months due to legal wrangling over Eyster’s alleged bias against Cubbison.

The Attorney General’s decision puts the decision on Faulder to decide whether Eyster should be given the green light to proceed with prosecution of Cubbison. 

The controversy surrounding Eyster’s filing of criminal charges against a fellow elected official has been further fueled by a sudden decision a few days later by the Board of Supervisors to suspend Cubbison without pay. She was not given the opportunity to publicly defend herself until two weeks later.

Cubbison has denied any criminal conduct, or personally benefiting from the extra county pay made to Kennedy. 

As backdrop to the tangled case is history of Cubbison and two Auditors before her tangling with DA Eyster since he took office in 2011 about travel expense claims, and his use of asset forfeiture funds for questionable expenses including covering the costs of annual staff parties labeled “continuous education training.” 

In 2021, Eyster took an unprecedented step of vehemently opposing Cubbison’s appointment as Acting Auditor before she ran for election a year later and won. The DA also publicly championed a controversial board move to consolidate two elected offices – Auditor/Controller and Treasurer/Tax Collector – into a combined office. Cubbison was chosen by voters to lead the combined offices to the DA’s chagrin, and their differences soon exploded into public view. 

The AG’s 12-page decision not to intervene in the Cubbison criminal case declared that the suspended Auditor and her attorney failed “to present evidence of a single prosecutorial decision or action that affected her right to a fair trial.” 

The office said it also was denying Cubbison’s request for an evidentiary hearing, contending that she and her attorney are not entitled to “go fishing” for facts or issues that her legal challenges so far have failed to provide.

The AG opinion was filed Tuesday afternoon in Mendocino County Superior Court by Bonta and Geoffrey Lauter, his supervising deputy attorney general. Eyster’s outline of the Cubbison case was filed a few hours later.

Cubbison’s attorney Chris Andrian said Thursday he is prepared to argue for the DA’s recusal in front of Judge Keith Faulder.

“It’s clear at the local level that the DA’s past conflicts with the Auditor prevents him from fairly prosecuting her for the crime he has alleged,” said Andrian. 

Eyster in his written declaration acknowledged that he offered Cubbison and her attorney at her scheduled arraignment Oct. 17 a deal to reduce her case to a misdemeanor in return for her resignation as Auditor. 

Because Kennedy did not have an attorney at the time, “We were unable to provide the same professional courtesy and invitation to talk to an attorney acting on her behalf,” said Eyster. Since then, Public Defender Mary LeClair has been appointed to represent Kennedy.

Eyster also confirmed earlier reports that it was CEO Darcie Antle and County Counsel Christian Curtis who triggered the criminal investigation of Cubbison and Kennedy.

Eyster writes that Antle and Curtis called late afternoon Sept. 1, 2022, to discuss with him the possible embezzlement of county funds “by at least Mendocino County’s Payroll Manager Paula June Kennedy.”

Eyster said Antle and Curtis had met with Cubbison and Kennedy earlier in the day, and believed Kennedy may have committed one or more crimes. The two top county officials also told him they were “suspicious of Ms. Cubbison’s demeanor at the meeting and at least some of her answers to questions posed to her about what she knew and when.”

Antle and Curtis were advised by Eyster to contact Sheriff Matt Kendall, according to the DA’s filed statement. Eyster said he learned that Kendall, Capt. Greg Van Patten, and Lt. Andrew Porter the next day were briefed during a meeting with Antle, Curtis, and Deputy CEO Cherie Johnson.

Lt. Porter was assigned to initiate a criminal investigation “of the allegations raised by the county administrators,” according to the DA statement to the court.

Eyster said when the investigative report was submitted to his office, it concluded three felony charges were possible.

“From my review of the crime reports provided by the Sheriff’s investigators the Payroll Manager was inserting an obscure earnings code on the payroll report that then allowed her to input a payment amount each and every pay period starting in 2019 to 2022 to collect monies not authorized by her position, Human Resources, or the Board of Supervisors,” according to Eyster’s court declaration.

During questioning by investigator Porter, Eyster said that Kennedy said she knew the extra pay she received during the Covid pandemic was not board authorized or “otherwise legal, but she believed that Auditor (Cubbison) must have figured out this as a novel way to get the Payroll Manager paid more money.”

Kennedy claimed to investigators that she made repeated attempts to have Cubbison “put her authorization of this scheme into writing.” Cubbison, however, ignored her requests or told Kennedy she was too busy and would get around to it at some later point that never came, according to the DA statement.

Cubbison has said the extra pay stemmed from an agreement between Kennedy and now retired Auditor Lloyd Weer, but Eyster’s declaration contends that Kennedy denied to investigators that she ever discussed the pay with the former Auditor. Weer also told investigators that he never discussed the extra pay scheme with either Kennedy or Cubbison.

Eyster said that Cubbison, Kennedy and Weer were all in agreement that the use of obscure code was ‘improper, and the extra monies paid out to the Payroll Manager were unauthorized as required by law.”

Eyster said his own DA investigators did “some follow-up investigation work in early or mid-2023 to supplement the investigation undertaken by the Sheriff,” apparently his rationale for taking more than a year to decide whether to file criminal charges against Cubbison who did not personally benefit from the payments.

Eyster defended his criminal filing against Cubbison.

“After reviewing all the reports, including recorded witness statements, and participating in a team charging meeting with my staff, I ultimately decided there was sufficient information developed in the overall investigation to partially accept the Sheriff’s charging recommendation” of filing a felony misappropriation of public funds against both Kennedy and Cubbison.

* * *

Cubbison Demands Job Back

A newly filed court writ seeks the immediate reinstatement of suspended Mendocino County Auditor Chamise Cubbison, and payment of all lost pay and benefits since her October ouster by the County Board of Supervisors.

County supervisors are accused of committing an “unlawful abuse of power,” and a violation of the elected Auditor’s right to due process. The petition writ of mandate was filed with the Mendocino County Superior Court and demands that Cubbison be returned to her job one day after any ruling.

Therese Cannata, a noted San Francisco labor law attorney, submitted the writ on Cubbison’s behalf. It names the County of Mendocino, the Board of Supervisors, and 20 unidentified individuals. It claims Cubbison’s personal and professional reputation has been damaged by the board action, and in addition to back pay and benefits, she is entitled to “all interest due to her at the legal rate” and “other and further relief as the court deems proper.”

Cannata’s civil action stirs more public controversy swirling around the board’s decision to oust an elected official after criminal charges were filed Oct. 13 against Cubbison by District Attorney David Eyster. At issue is whether Eyster can fairly prosecute a fellow elected official given their past political run-ins over his spending of public asset forfeiture funds, and reimbursement requests for travel-related expenses. 

Now the situation appears to be further complicated because of the possibility the DA could be summoned as a witness if civil action is pursued against the county and the Board of Supervisors.

Chris Andrian, Cubbison’s defense attorney, said the new filing is one more reason why Eyster should voluntarily step aside and allow the criminal case to be independently reviewed for possible prosecution. Andrian will appear Tuesday before Mendocino County Judge Keith Faulder to formally argue for the DA’s recusal if Eyster doesn’t act before then. Depending on the outcome, Cubbison and co-defendant Paula June Kennedy may finally be able to enter expected not guilty pleas to a single felony charge of misappropriation of public funds each face. Their plea entries have been delayed since October because of legal wrangling over the DA’s role in the case.

Kennedy is accused of receiving $68,100 in extra pay by using an obscure payroll code during the period from 2019 to 2022. There appears to be no arguments whether work was performed for the extra earnings, or if Cubbison did not personally benefit. Who authorized the payments, however, is in dispute. Cubbison contends it was the result of a deal reached between Kennedy and now retired Auditor Lloyd Weer. DA Eyster, however, claims Kennedy and Weer blamed Cubbison when Sheriff’s investigators questioned them.

No matter, argued attorney Therese Cannata in the new civil action.

Cannata said County supervisors erred when they relied on a state government code cited by an outside county legal adviser as grounds to suspend Cubbison. The board acted four days after she was criminally charged in an Eyster-filed complaint that cites no specifics.

Cubbison was summarily locked out of her office and escorted from the county administrative complex by Darcie Antle, county executive office, and the director of the county Human Resources department. The board acted to suspend Cubbison after agreeing to an off-agenda item for its regularly scheduled Oct. 17 meeting.

Attorney Cannata says that as a result Cubbison’s reputation “has been damaged and the citizens of Mendocino County have been unlawfully and summarily denied the right, without cause, to have their duly elected Auditor-Controller and Treasurer-Tax Collector serve in office.” 

Cannata is the managing partner of the law firm of Cannata, O’Toole & Olson. She specializes in representing management level public employees statewide. Cannata has been ranked among “super lawyers” by her peers.

Cannata said a court order for Cubbison’s immediate reinstatement is necessary because she has no other “plain, speedy, and adequate remedy.”

Cannata is especially critical of the Board of Supervisors, the District Attorney, and others involved in a mushrooming local political drama that now involves civil and criminal actions. It sets the stage for possibly prolonged and costly litigation at taxpayers’ expense.

Of primary concern for Cannata is the board’s reliance on government code section 27120 to justify its locally unprecedented removal of an elected official. Board members have blamed Cubbison for delays in financial reporting after they forced a consolidation of the county’s two independent financial oversight offices. The consolidation was opposed by Cubbison and other senior county officials, and local civic groups, all of whom warned of chaos that was sure to follow. Nevertheless, county supervisors, with the public support of DA Eyster, forged ahead in hopes the consolidation would lead the creation of a new county Department of Finance more closely aligned with the board and county administrators. 

Cannata said the board’s reliance on the disputed state code section was faulty despite being recommended by the county’s outside legal firm of Liebert Cassidy Whitmore, also of San Francisco.

Specifically, Cannata said in the Cubbison case, the state code is “inapplicable because it does not apply to the merged positions” that she was elected in 2022 to hold. The code only cites an elected county treasurer. The board has no legislative authority to suspend Cubbison since the alleged wrongdoing occurred in the Auditor’s Office, argued Cannata. 

Cannata said of equal importance are serious issues involving proper notice and due process for elected county officials.

Simply put, said Cannata, “The Board of Supervisors cannot suspend or remove a duly elected official … without notice or due process.”

Cannata also takes issue with DA Eyster’s criminal complaint against Cubbison, and how the board relied on that for justification of their decision to suspend the Auditor without notice. 

“The importance of an established procedure is demonstrated by the criminal complaint, which is silent on any facts supporting the violation,” said Cannata.

Cannata said, “It is impossible to tell from the criminal complaint exactly what facts (Cubbison) is charged with that may tie to her official duty.”  

Further, Cubbison’s co-defendant Kennedy for most of that time she received extra pay was “under the direction and authority of the prior-elected Auditor-Controller Lloyd Weer.”

Cannata noted that Weer is “curiously not referenced in the criminal complaint.”

Cubbison did not assume her elected role as head of the two departments until January 3, 2023, after the alleged illegal payments were made, said Cannata.

Cannata also noted that DA Eyster’s criminal complaint against Cubbison is “devoid of any factors or alleged conduct supporting the charge.”

“No meaningful evidentiary hearing – either pre-suspension or post-suspension – was held (by the Board of Supervisors) on the merits of the allegations in the criminal complaint,” said Cannata.

Cannata argued in conclusion that the board’s “lack of legal authority to suspend petitioner without pay coupled with a lack of a meaningful hearing on the sufficiency of the allegations at issue to warrant the removal of an elected official is both an unlawful abuse of power” by the county board and a violation of Cubbison’s right to due process.

It is unclear when Cannata’s petition for Cubbison’s immediate reinstatement will be heard, and before what judge.