Cubbison Case Delays & Demands

Beset by scheduling challenges and an injury, the prosecution of suspended Mendocino County Auditor Chamise Cubbison is grinding to a halt for the holidays. 

Cubbison attorney Chris Andrian said a remote conference would be held today (Wednesday) to reschedule proceedings for some time in January. Andrian was scheduled to press his argument at 1:30 p.m. today to have District Attorney David Eyster recused from the case (see below) but that hearing will now be held in January, said the Santa Rosa attorney.

Cubbison this week suffered a serious foot injury, and was unable to make a scheduled hearing Wednesday, according to Andrian. “It’s the last thing she needs at this point, but it has happened, and she is receiving medical care.”

In the meantime, Cubbison’s co-defendant Paula June Kennedy, the county’s former Payroll Manager, entered a not guilty plea as expected on Tuesday to a single felony charge of misappropriation of public funds. Public Defender Mary LeClaire is representing Kennedy.

On Oct. 17 Eyster filed a felony criminal complaint accusing Kennedy of receiving $68,100 in unauthorized extra pay from 2019 to 2022 and blaming Cubbison for using an obscure payroll code to allow the payments to be processed. Both defendants contend the extra pay was for work actually done, and that Cubbison did not personally benefit.

Andrian is seeking to have DA Eyster recused from further prosecuting the Cubbison case because of a history of conflict between him and the duly elected auditor, who began her term in January of this year. Eyster has publicly quarreled with Cubbison over her questioning of his spending of asset forfeiture funds for staff dinners and travel reimbursements, and he took the unprecedented step of opposing her appointment as acting Auditor when then Auditor Lloyd Weer retired early in 2022. Eyster has quarreled with county auditors over spending practices since he took office in 2011.

Cubbison and Kennedy are free on their own recognizance.

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Cubbison’s Attorney Responds To Ag Refusal Recuse DA From Case

The AG’s opinion issued last week regarding the possible recusal of Mendocino County District Attorney David Eyster’s attempt to prosecute a fellow elected official is in dispute. This is not the first time the AG’s Office has waved off concerns about possible prosecution conflicts involving DA Eyster. In 2022, the AG opined that his past ties to the victim in a domestic violence case involving a former probation officer and the subsequently fired Ukiah Police Chief did not constitute a conflict. Eyster subsequently failed to file any criminal complaint against the then Police Chief, who was accused of demanding sex from a woman while on duty and at her home. Have AG attorneys paused, and taken a serious look at the situation in Mendocino County? There is concern that serious conflict issues involving the District Attorney are being overlooked.

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Statement Of The Case

On October 13, 2023, a criminal complaint was filed, charging Defendant Chamise Cubbison in Count l with a felony violation of Penal Code section 424(a), Misappropriation of Public Funds.

Introduction

Ms. Cubbison persists in her assertion that the recusal of District Attorney C. David Eyster is proper and required based on the actual conflict of interest indicated by: (1) Mr. Eyster’s prior treatment of Ms. Cubbison and (2) Mr. Eyster’s retaliatory decision to prosecute Ms. Cubbison for the same misuse of public funds she alleged of him.

Defendant’s Reply To Opposition To Motion To Recuse

Mr. Eyster’s Treatment Of Ms. Cubbison Indicated A Conflict Of Interest Sufficient To Render It Likely She Will Receive Unfair Treatment

In People v. Eubanks, 14 Cal. 4th 580. 592-593, the California Supreme Court explained. “[b]ecause the enactment of section 1424 eliminated the appearance of impropriety as an independent ground for prosecutorial disqualification, our review of the recusal order here must focus on [the creation of] a conflict with the actual likelihood of prejudice to [defendants], rather than on whether [the circumstances would be] “unseemly” or create “the perception of improper influence.” “[A] district attorney’s office could [not] be recused for a mere appearance of impartiality, but could only be recused when there existed an actual likelihood of unfair treatment.” (Spaccia v. Superior Court (2012) 209 Cal.App.4th 93, 104 citing Stark v. Superior Court (201 1) 52 Cal.4th 368, 416.)

Mr. Eyster’s treatment of Ms. Cubbison exceeded the mere appearance of impropriety and created a conflict of interest with the actual likelihood of prejudice. When Ms. Cubbison raised concerns about Mr. Eyster’s use of public asset forfeiture funds with regard to his Broiler Room reimbursement claim, she was in essence implying that Mr. Eyster had misused public funds. (Chris Andrian Declaration at p.2.) 

Ms. Cubbison again drew attention to Mr. Eyster’s personal use of County funds when she challenged the validity of his reimbursement claim for the travel expenses of Heidi Larson and Douglas Rhoades. (Chris Andrian Declaration at p.4.) 

ln response to Ms. Cubbison 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.

Mr. Eyster’s behavior toward Ms. 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. (Chris Andrian Declaration at p.3.) 

Mr. Eyster acknowledges in his declaration that he was first briefed by members of County Administration on September 1, 2022, which is roughly one year after he appeared in front of the Board of Supervisors expressing a negative opinion about Ms. Cubbison and objecting to her appointment as Auditor and Controller. 

This came on the heels of Ms. Cubbison questioning whether the District Attorney was misusing County funds. Can there be any doubt that prior to receiving the information on September 1, 2022, Mr. Eyster and Ms. Cubbison had a contentious relationship? She in her role as Auditor was questioning Mr. Eyster’s use of funds and now he is pursuing judgment on her use of funds. The assignment of the case to the Mendocino County Sheriff’s Office was a convenient way for Mr. Eyster to attempt to distance himself from the investigation, yet prior to the filing of the criminal complaint his office, by his own admission, took over the investigation.

Defendant Cubbison moves to strike paragraph 16 of Mr. Eyster’s declaration in its entirety. Aside from the fact that it has absolutely no relevance to the recusal motion before the Court, it is not an accurate statement of the facts of the alleged conversation, and more importantly, it is an inadmissible statement which never should have been included in the first place. It is a basic and fundamental rule of law that settlement discussions and potential offers to resolve cases are inadmissible as Evidence. See California Evidence Code Section 1153. A district attorney will not be considered “disinterested if he has...an axe to grind against the defendant, as distinguished from the appropriate interest that members of society have in bringing a defendant to justice with respect to the crime...charged.” (People v. Eubanks supra 14 Cal. 4th at p. 590.) Mr. Eyster’s retaliatory behavior toward Ms. Cubbison clearly demonstrates that he has an axe to grind with her sufficient to indicate conflict with the actual likelihood of prejudice to her case.

Conclusion 

In viewing the totality of all the circumstances, can there be any doubt that District Attorney C. David Eyster has an axe to grind against defendant Cubbison?

Dated: December 15, 2023 Andrian & Gallenson

Chris P. Andrian

Attorneys for Defendant Chamise Cubbison

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Chamise Cubbison’s Demand For Reinstatement as Mendocino County Auditor-Controller/Treasurer-Tax Collector

Petition For Writ Of Mandamus 

Petitioner, Chamise Cubbison, alleges:

1. Petitioner Chamise Cubbison (“Petitioner” or “Ms. Cubbison”) is the elected Mendocino County Auditor-Controller/Treasurer-Tax Collector.

2. Petitioner is informed and believes that in or about 2021, the Board of Supervisors decided to merge the positions of Mendocino Auditor-Controller and Treasurer-Tax Collector into one position currently known as the “County Auditor-Controller/Treasurer-Tax Collector,” which would become effective on January 1, 2023. 

In or about June 2022, Ms. Cubbison was duly elected as the County Auditor-Controller/Treasurer-Tax Collector. As of July 2022, the position of County Auditor-Controller was vacant, and the position of Treasurer-Tax Collector was vacant. Petitioner is informed and believes that the Board of Supervisors decided in or about July 2022 to advance the merger date for those elected positions and appoint Ms. Cubbison to fill the position for the now merged position of County Auditor-Controller/Treasurer-Tax Collector for the balance of the terms of each position set to expire in December 2022.

3. Ms. Cubbison assumed office as the duly elected Mendocino County Auditor- Controller/Treasurer-Tax Collector on January 3, 2023, assumed her duties in that capacity as of that date.

4. Respondent County of Mendocino (“County”) is a general law County, located in the State of California. Respondent Mendocino County Board of Supervisors (“Board of Supervisors”) serves as the legislative and executive body of County government and many special districts, and is comprised of five full-time members elected by their respective districts.

5. Plaintiff is informed and believes that on or about October 13, 2023, the Mendocino County District Attorney filed a criminal complaint styled “People of the State of California v. Chamise Cameron Cubbison, Mendocino County Superior Court, Case No. 23CR02523-B,” against Petitioner (“Criminal Complaint”). The Criminal Complaint alleged that between the dates of October 1, 2019 and August 31, 2022, Ms. Cubbison violated California Penal Code section 424(a) through her alleged involvement in the misappropriation of public funds by the former payroll manager, Paula Kennedy. The Criminal Complaint identifies Petitioner as the “then-supervisor” of Ms. Kennedy. The Criminal Complaint does not allege any specific facts supporting the criminal charge.

6. On or about October 13, 2023, the County’s Chief Executive Officer and Human Resources Manager escorted Ms. Cubbison out of the County’s Administrative Building and locked her out of all access to any County building or facilities, removing her ability to perform her duties as an elected official, and directed further that she not perform her duties as a duly elected official nor enter any County building and/or facility.

7. On or about October 17, 2023, Ms. Cubbison appeared with counsel in court for arraignment on the Criminal Complaint, and the arraignment was continued.

8. Petitioner is informed and believes that on or about October 17, 2023, at a regularly scheduled Board of Supervisors Meeting, without proper notice to the public by noticed agenda, or prior notice of any kind to Ms. Cubbison, the “Item 5b) OFF AGENDA ITEM” was added:

“Discussion and Possible Action Including Adoption of Resolution Suspending Auditor-Controller-Treasurer-Tax Collector Chamise Cubbison from Her Position Without Salary And Benefits; and Appointment of Acting Auditor-Controller-Treasurer-Tax Collector, Pursuant to Government Code 27120 (Sponsor: Chair McGourty)”

The accompanying Resolution No. 23-173 was thereafter passed by the Board of Supervisors, suspending Ms. Cubbison in her capacity as a duly elected official, to wit, the Mendocino County Auditor-Controller/Treasurer-Tax Collector. The suspension was without pay. 

9. Petitioner is informed and believes that on or about October 18, 2023, the County mailed a letter to Ms. Cubbison informing her of the suspension without pay or benefits, effective October 17, 2023, reaffirming that she not enter any County building or facility, and notifying Ms. Cubbison of the opportunity to address the Board on October 31, 2023 at 1:00 p.m. Petitioner received the letter approximately one week later.

10. On or about October 31, 2023, Ms. Cubbison appeared with her counsel, Chris Andrian, before the Board of Supervisors. Mr. Andrian notified the Board of Supervisors of the multiple legal deficiencies for the actions taken by the County and/or the Board of Supervisors on or about October 13, 17, and 18, 2023, including the lack of notice and due process, as well as the lack of legal authority for the actions taken (i.e., the “lockout,” suspension, the suspension without pay, and/or removal from office).

11. Petitioner is further informed and believes that the County has no authorized procedure or process, whether by statute or ordinance, to take the foregoing actions as alleged herein (i.e., the “lockout,” suspension, the suspension without pay, and/or removal from office) and did not adhere to or follow any duly authorized procedure or process in taking such actions.

12. This Petition for Writ of Mandate under California Code of Civil Procedure section 1094.6 and section 1085 seeks to enforce the right of Petitioner, the duly elected Mendocino County Auditor-Controller/Treasurer-Tax Collector, who was suspended without pay by Respondents, and each of them, allegedly on authority of California Government Code section 27120.

13. Government Code section 27120 pertains only to Respondents’ power to suspend a Treasurer; there is no reference to the Auditor-Controller in that statute. In summary, Government Code section 27120 is inapplicable because 

(1) it does not apply to the merged positions of Mendocino County Auditor-Controller and Treasurer-Tax Collector; 

(2) section 27120 never applied to the Auditor-Controller; 

and (3) even if section 27120 could be used to suspend the Treasurer only, Respondent had no authority to suspend Petitioner in her capacity as the Auditor-Controller.

14. Further, the power to suspend is not equivalent to a procedure, with the protections of notice and due process, to suspend. Government Code section 27120 is also limited in its terms to the “Treasurer.” The County and/or the Board of Supervisors cannot suspend or remove the duly elected official in a combined office of Auditor-Controller/Treasurer-Tax Collector without notice or due process.

15. The importance of an established procedure, including notice and due process, is demonstrated by the Criminal Complaint, which is silent on any facts supporting the violation. It is impossible to tell from the Criminal Complaint exactly what facts Petitioner is charged with that may tie to any official duty in her current elected office as the Auditor-Controller/Treasurer-Tax Collector. Accordingly, Respondents did not, and could not, make an affirmative finding that the charges against Petitioner had anything to do with her official capacity as elected Mendocino County Auditor-Controller/Treasurer-Tax Collector or to the performance of her duties as such.

16. Further, the Criminal Complaint, herein identified, alleges unlawful actions by the former payroll manager (Ms. Kennedy) during a particular time period – between the dates of October 1, 2019 and August 31, 2022. For most of that time, Ms. Kennedy was under the direction and authority of the prior elected Auditor-Controller (Lloyd Weer), who is curiously not referenced in the Criminal Complaint. Further, Petitioner assumed duties, and the term of office as the elected Mendocino County Auditor-Controller/Treasurer-Tax Collector that she now holds, on January 3, 2023.

17. The words “official misconduct” are virtually the same words as “misconduct in office.” The language relied on in Article IV, Section 18, Subdivision (b) of the California Constitution provides the basis for impeachment of state officers and judges of the state courts. (Mazzola v. City & Cnty. of San Francisco (1980) 112 Cal.App.3d 141, 149-151 [noting that for official misconduct, “…by its very definition, there exists the requisite nexus between the act or omission and the position held”] [citing 63 Am.Jur.2d, Public Officers and Employees, § 190, p. 743 [“To warrant the removal of an officer, the misconduct, misfeasance, or malfeasance must have direct relation to and be connected with the performance of official duties…”]; and citing, Coffey v. Superior Court (1905) 147 Cal. 525, 529 “The phrase includes any willful malfeasance, misfeasance, or nonfeasance in office.”].)

18. Here, the Criminal Complaint is devoid of any facts or alleged conduct supporting the charge. Respondents simply relied on the fact that criminal charges were filed. (See, Exhibit B, herein, Resolution No. 23-173.) No criminal grand jury proceeding or indictment was issued in connection with the Criminal Complaint. No civil grand jury proceeding was commenced concerning the allegations that gave rise to the Criminal Complaint. No meaningful evidentiary hearing – either pre-suspension or post-suspension – was held on the merits of the allegations in the Criminal Complaint. Respondents’ 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 Respondent and a violation of Petitioner’s right to due process.

19. Petitioner is beneficially interested in the performance of Respondents’ duty to reinstate her as the Auditor-Controller and Treasurer-Tax Collector, with backpay and benefits.

20. Respondents have the present ability to perform the above-described duty.

21. Petitioner has no plain, speedy, and adequate remedy in the ordinary course of the law other than the issuance by this Court of a writ of mandamus.

22. As a direct and proximate result of Respondents’ unlawful and improper actions, including, inter alia, the “lockout,” suspension, the suspension without pay, and/or removal from office, Petitioner 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.

Wherefore, Petitioner requests that the Court:

1. Issue a peremptory writ of mandamus in the first instance commanding Respondents to reinstate Petitioner to her position of Auditor-Controller and Treasurer-Tax Collector, with back pay and benefits no later than one (1) business day following an order for relief;

2. Award Petitioner damages in an amount equal to all backpay and lost benefits due and owing to her;

3. Award Petitioner all interest due to her at the legal rate; and

4. Grant Petitioner such other and further relief as the Court deems proper.

Dated: December 15, 2023

Therese Y. Cannata

Cannata O’Toole & Olson LLP

Attorneys for Petitioner Chamise Cubbison

San Francisco/Walnut Creek