Christmas is nearly here and the New Year is just around the corner. I'm shame-faced as I just haven't had the time to get shopping done, send out cards, etc. So I'm going to be busting it today and tomorrow to get all those things done.
Anyway,lots of good stuff in this week's edition of the Mendocino Observer.
Nifty little front-page story on this year's North Pole Toy Express. My late wife Susan and I founded NPTE many years ago, and every year it seems to be a bigger success. All the credit goes to Susan for NPTE being the well organized, ongoing success it is. Since Susan's passing, our daughter Jayma has carried on the operations of the NPTE with the same skills and can-do know-how as her mother. It's in good hands. And thank you to everybody on this subscription list who supports and helps out with NPTE, we really appreciate it.
Most of the political reporting this week deals with the ever-expanding mess that is the Cubbison Affair. So be sure and read all-pro-all-the-time Mike Geniella's reports updating the status of the Cubbison cases. My column includes a few comments on the Cubbison contretemps, as well as a bit of advice for Cubbisson's lawyers. I've always believed that it is better to give than receive — especially advice. BTW, I didn't say that, Samuel Clemons did. Alright, Mark Twain said it too.
As always, don't miss the Divine Ms G's Farmers' Market Report on the front page, and check out the latest from Bruce Anderson on page two. As I've said a time or two before, no matter what the format or platform is, Anderson is this country's best writer, PERIOD.
Merry, Merry, Merry Christmas and the Most Prosperous of New Year's To You and Yours. From Me and Mine,
Jim Shields, Editor
Mendocino Observer, Laytonille
* * *
The oft-delayed kick-off to the Mendocino County version of its Trial of the Century is back in a holding pattern once again.
Suspended Auditor-Controller/Treasurer-Tax Collector Chamise Cubbison’s conjoined criminal arraignment/DA recusal/civil proceedings have been postponed to sometime in January of the New Year.
According to Mike Geniella’s latest cogent report, “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 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.’”
As I’ve said before, the impetus for this sordid affair culminated in 2021 when a petty bureaucratic squabble instigated by DA David Eyster over his office’s travel reimbursements being (correctly) rejected by then Acting Auditor-Controller Cubbison because he refused to follow county reimbursement guidelines. It should be noted that Eyster, in the run-up to the Cubbison imbroglio, tangled with preceding Auditors, namely Meredith Ford and Lloyd Weer, over his refusal to comply with established reimbursement policies and asset forfeiture claims.
I’m still waiting for somebody to explain why we are on the hook for this outside, pricey San Francisco law firm’s representation and advice when we have a taxpayer-funded 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, obscure 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 county 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.”
As I first advised almost two months ago, Cubbison’s lawyers in their filings should be arguing the primacy of a then-new Government Code created in 1943, and one of its provisions, Section 1770, addresses 16 different ways in which an elected office becomes legally vacant, but I’ll only discuss 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.”
So that’s how the removal process is supposed to work in criminal justice matters.
With the exception of the antiquated GC Sec. 27120, referencing just the Treasurer position, there is no other provision addressing the authority of a Board of Supervisors to suspend any other type of elected official pending their adjudicated conviction.
It’s more than obvious that the clear intent of the state legislature back in 1943 when it enacted Section 1770, 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.” The whole idea was to leave the accused elected official in office pending final determination in the court proceeding. It’s called due process.
I’m stating the obvious but local elected officials are neither judge nor jury.
Government Code Section 1770 basically calls for a procedural timeout once an elected official is charged with wrongdoing, and no action is taken by other elected officials, in this case the BOS, until final judgment is rendered by the court.
This is an example of where a law, Government Code Section 1770, says what it means, and means what it says.
Government Code Section 1770 is not some unfathomable law surreptitiously enacted by the state Legislature. It directly resulted from a statewide initiative approved by the voters to overhaul and modernize California’s 1879 Constitution, and in the process created the state’s first comprehensive statute(s) defining, structuring, organizing and establishing the powers and jurisdictions of both state and local governments. It was truly a big deal.
Turning our attention now to a somewhat smaller deal, details are unknown surrounding the scope and depth of the research conducted by the County’s outside, San Francisco-based law firm (Liebert Cassidy Whitmore), that resulted in an opinion based solely on an obscure Government Code section that on its face is not applicable to the case at-hand. As pointed out by many of us, including Cubbison’s attorney, the outside law firm’s recommended Government Code section relied upon by the BOS, is fatally flawed because it refers to the County Treasurer position when, according to DA Eyster, the alleged wrongdoing occurred in Cubbison’s role and authority as County Auditor. So, that fact means the Supervisors October 17 action suspending Cubbison is null and void because it was and is by definition unlawful. Which in turn means Cubbison’s official status defaults to the guidelines set out in the only Government Code provision left standing, Section 1770, that says she remains on-the-job pending court proceedings that will determine her fate.
I think that makes sense to most of us, don’t you?
So why doesn’t it make sense to the powers that be in the county seat?
(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)
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