Prosecutors want to question a psychologist who prepared a report supporting the mental health diversion of Mendocino County’s former Payroll Manager, a veteran employee facing a felony charge of misappropriation of public funds.
Special outside prosecutor Traci Carrillo, hired by DA David Eyster to prosecute Paula June Kennedy and suspended Auditor Chamise Cubbison, told Superior Court Judge Ann Moorman that she wants to talk with Ukiah psychologist J. Holden about his conclusions that Kennedy meets the criteria of diversion of a criminal defendant into a mental health treatment program.
“I won’t waste the court’s time, but I do have some questions that I need to present to him,” Carillo told Judge Moorman.
Moorman set a follow up hearing on the issue for Sept. 16. It was the latest in delays of a case that even the judge has publicly complained has dragged on too long since being filed in October 2023.
A preliminary hearing, typically the first major step in a criminal case, has yet to be conducted. Moorman suggested Thursday that may not occur for several more weeks given the legal questions dogging DA Eyster’s decision to prosecute a fellow elected official, and the county’s former Payroll Manager. He accused them of using an obscure payroll code so Kennedy could collect about $68,000 in extra pay over a three-year period during the Covid pandemic.
Public Defender Mary LeClair on Thursday objected to another delay, contending that prosecutors have had two weeks to formally respond to her motion on Kennedy’s behalf.
LeClair cited court cases supporting diversion of criminal defendants to mental health treatment programs without having to conduct formal court hearings to explore the reasoning behind professional opinions such as Holden’s in the Kennedy case.
“You have the discretion based on what is in front of you,” argued LeClair.
Thursday’s hearing was the result of a new twist in an already convoluted case.
LeClair on July 30 sought the diversion for Kennedy because under Penal Code section 1001.36 a criminal defendant who has been diagnosed within the last five years by a qualified mental health expert with a mental disorder can be diverted into mental health treatment.
Kennedy, who has been in counseling since 2018, contends her mental health has deteriorated since becoming engulfed in what she and supporters believe is a political vendetta being waged by DA Eyster against Cubbison.
Kennedy said no one disputes that she was paid for work done during a difficult period affecting more than 1,100 county employees. Who authorized the extra pay is at the core of the case, however.
If the defense diversion motion is granted, Kennedy’s not guilty plea to the felony charge will stand. If Kennedy successfully completes a mental health treatment program, she can eventually petition for the criminal charge to be stricken from her record.
Judge Moorman said Thursday, however, she was not prepared to rule on the motion until prosecutor Carrillo has a chance to closely review with psychologist Holden his reasons why it is warranted.
Moorman also said Thursday that even if she were to be inclined to grant Kennedy diversion, she may order restitution.
DA Eyster last October filed the high-profile criminal case against Kennedy and suspended Auditor Cubbison, accusing them of using an obscure payroll code to allow Kennedy to collect extra pay over a three-year period during the Covid pandemic.
The case is laced with local politics because Eyster had run-ins with Cubbison about his own office spending, and his efforts to block her appointing as interim Auditor when former Auditor Lloyd Weer retired earlier. Subsequently, Eyster supported a controversial move by the county Board of Supervisors to force consolidation of the county’s two primary financial offices – the Auditor and Treasurer-Tax Collector – over the objections of senior staff including Cubbison.
Eyster early in the case resisted legal moves to force his recusal from the case because of his alleged conflicts. Earlier this year, however, he quietly stepped back after hiring Carrillo, a former prosecutor in Sonoma County, to oversee the case at the rate of $400 per hour.
Besides the mental health diversion issue, the case is also buffeted by a continuing dispute over thousands of emails involving Cubbison, Kennedy, and their one-time boss, retired Auditor Weer.
County officials initially rejected defense moves to obtain copies, saying an aging email archival system had been corrupted and that they were no longer available. Then the county backtracked, saying some but not all had been located.
Judge Moorman agreed recently to function as a ‘special court master’ to review the contents of an estimated 279,000 emails for relevancy to the pending criminal case.
Moorman said Thursday she and the county IT manager have agreed on a formula that focuses on court review of emails only related to exchanges among Kennedy, Cubbison and Weer, and not employee matters cited by the County Counsel Office as areas of concern.
Cubbison has maintained throughout the case that emails exist that support her contention the extra pay agreement was between Weer and Kennedy, and that is why she allowed the pay to continue after she assumed control of the office. Cubbison was appointed interim Auditor by county supervisors before she was elected by voters in 2022 to formally head a newly consolidated office. Kennedy and Weer, according to DA Eyster, blamed Cubbison for making the arrangement, according to a sworn statement he submitted to the court.
Cubbison attorney Chris Andrian of Santa Rosa despite Moorman’s email oversight again questioned how anyone will ever know if all related documents surrounding the case were preserved and made available to defense attorneys.
“I am not trying to be difficult, but I still don’t think we will be getting a complete record,” said Andrian, who engaged in Thursday’s hearing via Zoom.
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