The state Attorney General’s Office is sticking with plans to appear Friday in Mendocino County Superior Court to officially oppose removal of District Attorney David Eyster from his attempt to prosecute the County’s suspended Auditor for misappropriation of County funds.
In an update, however, a Justice Department spokeswoman acknowledged awareness of a mushrooming local controversy over Eyster’s action against Auditor Chamise Cubbison, and mounting criticism that the DA is displaying a pattern of conflicts of interest with Cubbison and past County Auditors, as he did with some law enforcement personnel in a string of local police misconduct cases that provoked public outcry in 2022.
“We are aware of the additional allegations,” said Joanne Adams, deputy communications director for the AG’s Office.
Adams added, “Beyond that we are unable to comment on, or even to confirm or deny, potential or ongoing investigations or actions.”
Superior Court Judge Keith Faulder is scheduled to hear defense arguments to recuse Eyster at 10 a.m. Friday. It is unclear whether Faulder will rule at the end or take arguments under submission and issue a written ruling later.
State attorneys want to keep the focus on the wide discretion given to District Attorneys under state law, especially a 1980 amendment to state Penal Code 1424 that declares a recusal “shall not be granted unless it is shown by the evidence that a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial.” The code was amended “in response to the substantial increase in the number of unnecessary prosecutorial recusals under the “appearance of conflict” standard established by earlier court rulings.
The AG’s Office argues against recusal of Eyster’s office because it contends the burden on Cubbison’s defense is “especially high” to ask for removal of the DA’s entire staff from the case. “California courts have emphasized that “disqualification of an entire prosecutorial office from a case is disfavored,” according to a legal brief signed by Attorney General Rob Bonta, Supervising Deputy Attorney General Geoffrey Lauter, and Sharon Loughner, Deputy Attorney General, who is to appear in Faulder’s court on behalf of the state.
The state attorneys are also arguing that the “mere appearance of a conflict does not warrant recusal.” They argue that Cubbison “presents no evidence that she has been subjected to unfair treatment during the prosecution of this case, or that there is a likelihood she will be not be treated fairly in the future.”
In a stinging rebuke to the state AG stance, however, Cubbison attorney Chris Andrian of Santa Rosa argued in a filing that Eyster’s treatment of Cubbison “exceeded the mere appearance of impropriety and created a conflict of interest with the actual likelihood of prejudice.” Andrian has said it is only the second time in his five-decade long legal career that he has sought to recuse a prosecutor from a criminal case.
“I don’t think the state attorneys understand the toxicity surrounding the case at the local level,” said Andrian.
Andrian said in his rebuttal to the state that when Cubbison raised concerns about his use of public asset forfeiture funds to cover the costs of annual staff dinners at the Broiler Steak House, “she was in essence implying that Mr. Eyster had misused public funds.”
Further, “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 (Deputy DA) Heidi Larson and Douglas Rhoades (an alternate County Public Defender).”
“In response to Ms. Cubbison shining a light on his misuse of public funds, Mr. Eyster began a campaign against Ms. Cubbison and het job, culminating in the filing of a criminal complaint against Ms. Cubbison alleging the very same misuse of public funds,” declared Andrian.
Eyster has refused to respond to written requests for comment on the Cubbison charging, his past disputes with the Auditor’s Office over his office spending, and his role in the Board of Supervisors’ decision to force consolidation of the Auditor/Controller and Treasurer /Tax Collector offices over the objections of senior county finance officers and civic leaders who predicted the move would engulf the County in budgetary chaos.
In a court declaration filed in December, Eyster said he was tipped to the Cubbison case by County administrators, and that he quickly referred them to the Sheriff’s office for investigation. The DA said he decided to only file one of three possible charges against Cubbison after reviewing the year-long probe.
Andrian disputes the DA’s version of events in his formal rebuttal to the state decision to oppose Eyster’s recusal.
Andrian in fact said 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.”
“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 reimbursement claims,” charged Andrian.
The clash between Eyster and Cubbison, two duly elected county officials, has roiled County politics, and threatens to influence the outcome of races for at least two seats on the county Board of Supervisors in the March primary.
Carrie Shattuck, a conservative candidate for the board, said two months ago she asked the state AG’s office to intervene in the case. She said she has yet to receive a response. “There is no question this has become the political hot potato for every candidate, incumbent or not.”
For Eyster, the Cubbison case is darkening what he had expected to be a term that if completed in 2028 would make him the longest serving District Attorney in the county’s history. He was gifted an extra two years to make that happen by the state Legislature, which decided that DAs and Sheriffs should be elected in presidential year elections rather than the current off-year cycle.
During his long tenure Eyster has earned a reputation as a hard-working, pugnacious prosecutor who regularly takes cases to trial along with a stable of deputies. But the mercurial Eyster also has been tagged as a bully unafraid to use his wide legal discretion enjoyed by District Attorneys to go after critics in and out of the courthouse. He engaged in office confrontations with seasoned employees who left after working under three other DAs before Eyster took over.
In 2016, Eyster became the focus of courthouse notoriety when he abruptly fired Assistant District Attorney Paul Sequeira, who had been his friend and colleague since law school. The issue was a side pay deal to Sequeira’s contract which Sequeira claimed was never honored. The former Assistant DA sued the county and received his promised compensation. Sequeira and Eyster eventually made up, and the DA subsequently hired Sequeira’s daughter Jordyn Sequeira as a Deputy District Attorney after she passed the state bar exam a few years later. Jordyn Sequeira has since moved on to become a prosecutor in the San Francisco District Attorney’s Office.
Eyster’s spending practices have been at issue with the County Auditor’s Office since he became DA in 2011.
In 2021, the DA blocked Cubbison’s appointment as Interim Auditor when her former boss Lloyd Weer retired early. Eyster publicly denounced Cubbison’s abilities, then he took the unprecedented step of endorsing a controversial plan by the Board of Supervisors to consolidate the County’s two formerly independent financial offices into one. The decision was made as some supervisors pushed for a now stalled plan to create a new Department of Finance more closely aligned with the board and the County Executive Office.
The political fallout ballooned on Oct. 13 after Eyster filed a single felony charge accusing Cubbison of misappropriation of public funds. There is no allegation in Eyster’s criminal complaint that she personally benefited from an alleged $68,000 in extra pay made to former county Payroll Manager Paula June Kennedy, a co-defendant and employee of the Auditor’s Office at the time. Kennedy has entered a not guilty plea.
At issue is Eyster’s contention that Cubbison used an obscure County budget code to pay Kennedy extra over a three year period beginning in late 2019. Cubbison maintains that the extra pay was for work done remotely during the Covid pandemic and was authorized by former Auditor Weer in an agreement reached between him and Kennedy. Eyster claims that Weer, who was not charged in the case, and Kennedy insist that it was Cubbison who crafted what the DA describes as a “pay scheme.”
Weer has failed to return repeated calls and messages seeking comment about his role in the matter. He has retained an attorney.
Attorney Andrian is zeroing in on a prior state ruling in his rebuttal to the Attorney General’s opposition to recuse Eyster from the high profile case:
“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.”
Andrian asks that “In 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?”
(Mike Geniella is a veteran journalist and former DA spokesman who worked part-time under contract until he terminated the arrangement in November 2021.)
Is the plan for their Department of Finance really stalled? They put Sara Pierce from the CEOs office in the position as interim. Appears to me its aligning exactly the way they wanted. There’s 3 years left in Cubbison’s term before they have to let the voters decide if we should have a “hire and fire” Department of Finance. That’s 3 years without our independently elected Auditor. The Boards plan is already in place, for now.
It does make one wonder, how many of the Boards reimbursement claims have been denied?
It seems to me that, when there’s a trial, Cubbison’s attorney would certainly call Eyster to the stand as part of her defense argument. That possibility alone should be cause to recuse the DA and anyone that works for him.