Cubbison Defense Moves To Have Criminal Case Tossed

A newly filed motion to dismiss felony charges against suspended Mendocino County Auditor Chamise Cubbison and fired county Payroll Manager Paula June Kennedy outlines a chaotic criminal case that remains stalled a year after its filing. 

The case erupted in October 2023 amid accusations of political retaliation by DA David Eyster and raised questions about the role of retired Auditor Lloyd Weer. It has been hobbled by a string of legal delays that Superior Court Judge Ann Moorman has publicly labeled “unfair” to the defendants. 

A defense filing Thursday sheds new light on a case that remains stalled in preliminary stages. The court is pondering the effects of an admittedly corrupted county email archival system and whether the alleged destruction and/or loss of evidence by investigators and the District Attorney’s Office hampers the defendants’ abilities to defend themselves.

Cubbison attorney Chris Andrian, a noted Sonoma County criminal defense attorney representing Cubbison, describes the high-profile case laced with local politics as a “tangled web of he-said, she-said, they-said.”

DA Eyster did not respond to requests for comments, nor did Special Prosecutor Traci Carrillo, an outside Sonoma County attorney hired earlier this year to manage the prosecution of Cubbison and Kennedy. Carrillo agreed on a contract to serve as special prosecutor and was provided by Eyster with a $10,000 retainer and an hourly rate of $400.

Kennedy’s attorney, Public Defender Mary LeClair, said she had no comment “at this time” on Cubbison’s motion for her case to be dismissed. 

A hearing on the motion is scheduled for 9:30 a.m. Nov. 13 in Moorman’s court, more than a month hence.

Andrian’s motion reveals that Cubbison triggered a county review of the disputed extra pay for Kennedy and not administrators, as claimed last October by the county Executive Office, some county Supervisors, and DA Eyster. 

In fact, according to Andrian’s motion, Cubbison turned over to the County Counsel’s Office in September 2022 an email sent by Kennedy threatening to leave her payroll post because of claims she had not been compensated for 400 hours of work during the COVID pandemic. At the time, Kennedy was a highly skilled salaried employee working remotely because many county offices were closed to the public.

At the time, DA Eyster was embroiled in a running public dispute with Cubbison over the Auditor’s questioning of his office spending practices, including staff dinner parties in violation of county policies. Eyster attempted to get Cubbison to resign her post in exchange for reducing the charges to a misdemeanor. When Cubbison refused, Eyster filed a single felony charge of misappropriating public funds against Cubbison after she decided to fight the allegations against her.

Eyster chose to ignore Cubbison’s contentions that former Auditor Weer might have instigated the unauthorized extra pay agreement involving Kennedy. He was questioned but not charged in the case.

An investigation conducted by Sheriff’s Lt. Andrew Porter and then reviewed by Eyster’s own investigators revealed that Kennedy eventually collected about $68,000 in extra pay over a three-year period. Cubbison said she believed it resulted from an agreement between Kennedy and Weer before she took control of the office. Kennedy claims Cubbison agreed to the extra pay after she took over the office but would never put it in writing. 

Porter, according to investigative reports, said Weer denied making an extra pay deal with Kennedy, but he later admitted to former chief DA Investigator Kevin Bailey that he had discussed with the payroll manager fundamental pay issues, including her contentions that two other salaried county employees had “figured out how to get more pay.”

According to a “statement of facts” submitted by Andrian to the court, Weer told Bailey that he advised Kennedy to find out “what forms the two employees were using, and maybe they could be used to benefit Ms. Kennedy.” Weer said they did not speak of it further, and that he never heard from her again.

“It does not appear that any follow-up investigation was done by Bailey regarding this information,” according to Andrian’s filing.

Andrian said DA Eyster, who initially refused to recuse himself from the Cubbison case despite his past public disputes with her, alleged in October 2023 that the suspended Auditor had authorized the extra pay for Kennedy when, in reality, retired Auditor Weer was Cubbison’s supervisor during a portion of that period.

“Through attempts by the defense to obtain relevant emails between the three parties, it has become apparent that the emails were compromised, with many missing or deleted and not preserved,” according to the defense motion.

Andrian said it also became apparent that Lt. Porter was at one point granted access by the county’s IT Department to all of the requested emails while conducting his investigation. However, it was later discovered that he “failed to preserve the emails, and they have since been compromised or destroyed, with no way to truly know what was lost.”

It appears, according to Andrian’s motion, that “no attempt was made to preserve Lloyd Weer’s emails despite his obvious involvement in the ongoing investigation, as he was the Auditor-Controller when the suspicious activity began, and he admitted finding an alternative means to find Ms. Kennedy a way to get appropriately compensated.”

Andrian declared that “In this case, three individuals pointed the finger at each other regarding how or whether Ms. Kennedy received authorization to use the additional pay code (labeled “470” in internal documents).”

“It seems clear that interoffice emails would be relevant with regard to what communication might have taken place and when, and how the office was run in general.

“Porter [the lead sheriff investigator] must have understood this as he requested and was granted access to all three email boxes for the entirety of the relevant time period. The emails were in his possession, and he had a duty to preserve them.

“However, instead of preserving the emails, he apparently did nothing. As a result, many emails were lost that may have been and likely were relevant.”