Key witnesses in a criminal felony case targeting suspended Mendocino County Auditor Chamise Cubbison are expected to testify Monday during a court hearing on defense attorneys’ bid to have the case dismissed.
Retired Auditor Lloyd Weer, Sheriff’s investigator Andrew Porter, and Tony Rakes, head of the county’s IT services at the time of a collapse of the county’s email archival system, are under subpoena to appear to offer their versions of events surrounding an alleged felony misappropriation of $68,000 in public funds for extra pay for former county Payroll Manager Paula June Kennedy. The hearing before Superior Court Judge Ann Moorman is scheduled to begin at 9 a.m. Monday in Courtroom E of the Ukiah Courthouse.
Cubbison lawyer Chris Andrian said the roles of Weer, Porter and Rakes “need to be cleared up.”
Special prosecutor Traci Carrillo, hired by District Attorney David Eyster to press a case against the suspended county Auditor who had questioned his own office’s spending, could not be reached Friday for comment.
Since Eyster filed criminal charges in October 2023, the high-profile Cubbison case has slowed to a crawl.
After 15 months, a preliminary hearing – the most basic step in any criminal prosecution – has yet to be held. The Cubbison case has instead experienced a slew of court hearings, the DA’s withdrawal in favor of hiring outside prosecutor Carrillo at the rate of $400 per hour, the discovery of thousands of missing internal county emails because of an alleged collapsed internal archive system, and rising questions about the possible role of retired Auditor Weer who was in still in charge of the office when Kennedy started drawing the extra pay.
“It seems this case is all about internal procedures, and not theft,” said Andrian this week.
Andrian said he believes Monday’s hearing will lead to a clearer understanding of who authorized the extra pay, whether internal county emails that might have supported who decided what, and perhaps to what extent politics played in the decision to prosecute.
DA Eyster and Cubbison had been at odds over his office’s spending, and he took the extraordinary steps of publicly denouncing her before she was elected to succeed Weer. He blocked Cubbison from being appointed interim county Auditor by the Board of Supervisors when Weer decided to retire in September 2021.
Eyster accused Cubbison and Kennedy of scheming to use an obscure county payroll code (470) to illegally allow the disputed extra pay over a three-year period. Kennedy was a salaried management employee at the time, and not entitled to extra compensation unless authorized by the Board of Supervisors.
Cubbison has insisted from the beginning that she was not party to the extra pay agreement. She has contended that it was reached between Kennedy and Weer who was still in charge of the office at the time payments began in October 2019. When questioned by law enforcement investigators Weer denied any involvement, although he eventually admitted that he in fact had talked with Kennedy about extra pay.
While Kennedy and Cubbison are co-defendants in the criminal case, they had a volatile work relationship before charges were filed, according to court documents. Kennedy chose to blame Cubbison for allegedly giving verbal permission to use the obscure pay code in question, although she acknowledges she cannot document her claims.
On December 16 Public Defender FredRicco McCurry, Kennedy’s new lawyer, filed a motion supporting Andrian’s bid to have the case tossed. In it, further details about the case’s background emerged.
McCurry stated that Cubbison periodically requested flex/compensatory time for Kennedy due to the excess hours the payroll manager was working without compensation. “Those requests were denied,” said McCurry.
McCurry said Kennedy sent an email to Cubbison declaring she had worked 390 unpaid hours, and that if she were not compensated, she would “resign her position and seek legal action.”
Cubbison “reported the email to the County Counsel’s Office, which resulted in the current investigation and eventual criminal charges.”
Sheriff’s Investigator Andrew Porter was assigned the case, which eventually led to Kennedy being placed on administrative leave and her county electronic devices and payroll files confiscated. Kennedy has denied any wrongdoing.
McCurry contends in his motion that Cubbison told Porter she was unsure how serious to take the threatened lawsuit because Kennedy was “often overwhelmed.”
Cubbison said she discussed with Kennedy her frustration of working too many hours but being exempt from receiving overtime pay. “Cubbison discussed the issue with Weer and HR (Human Resources) representative Heidi Dunham. Cubbison tried to get Kennedy additional compensation.”
Cubbison, however, contends she did not know what the ultimate results were from the discussion but that she “assumed that Weer addressed the issue directly with Kennedy and that the 470 code payments were the solution approved by Weer.”
Court documents show that Weer initially denied any agreement with Kennedy, and that he contended to investigator Porter that Cubbison was Kennedy’s “direct supervisor.”
“Weer confirmed he knew Kennedy was overworked, but that he had not approved and had no knowledge of the compensation,” according to McCurry’s motion.
Yet McCurry found that when Kevin Bailey, former chief investigator for Eyster, had a final interview with Weer, the retired Auditor “confirmed that he had a conversation with Kennedy in which she told him about two county employees who had figured out how to get additional pay. Weer told Kennedy they should find out how and see if it could be used to benefit Kennedy.”
Of equal concern at Monday’s hearing will be Investigator Porter’s role in failing to preserve internal county emails among Weer, Cubbison and Kennedy at the time the extra pay was emerging as an internal issue. The defense attorneys believe the missing internal documents could explain the conflicting explanations offered by Cubbison, Kennedy and Weer.
“Weer, Cubbison and Kennedy have conflicting and inconsistent versions of the events in this case. Emails from Weer, Cubbison, or both, to Kennedy or each other would have established whether Kennedy acted unilaterally in receiving the 470 code payments, or if she were authorized the compensation by her supervisors,” McCurry argued in his motion to dismiss.
Prior to February 2024, after Eyster filed felony charges against Cubbison and Kennedy, the county email accounts for the defendants were set aside presumably to preserve them as evidence. Oddly, no email accounts for Weer were set aside.
Then 11 months ago, the defense attorneys were informed of an alleged email archive failure that made it impossible to secure any emails prior to June 2020, the critical period when documents might have shown what led up to the 470 code payments.
In January 2024, missing email accounts of Weer, Cubbison and Kennedy were found and uploaded to a secure network location but by August the county informed the court that when access was attempted it was discovered not all emails were present and “some of the folders were empty.”
The missing emails included Cubbison’s account from 2019, and emails from all three from January 2020 to June 2020.
Judge Moorman hired a special referee to review approximately 10,000 emails from county email boxes assessed to Cubbison, Weer and Kennedy that were recovered.
In a special report filed December 4 Moorman stated that the referee reviewed 6,341 emails dated between 2018 and 2022 among the three, and found that some should be placed on three separate thumb-drives (accompanied by two printed emails) and turned over to the defendants, their lawyers, and the special prosecutor for review. However, it did not divulge how many emails, or their contents.
“To reiterate, this review and production should not be interpreted to either confirm or undermine any claim,” stated Moorman in her report.
Andrian and McCurry argue that Porter was fully aware of the conflicting accounts by the three principals involved in the case – Weer, Cubbison, and Kennedy – but that he made no attempt to preserve the documents as evidence during his review.
“The very fact that Porter sought the emails supports that they were relevant and contained exculpatory evidence for at least one of the parties. The emails should have been preserved and available to the defense as part of the discovery process,” stated McCurry in his motion supporting Andrian’s bid for dismissal of the case.
“Porter’s failure to preserve the emails goes beyond mere negligence, and hits the level of bad faith,” wrote McCurry.
Andrian, in his final filing before Monday’s hearing, zeroed in on Porter’s decision not to independently preserve the emails when he had access to them.
“On September 8, 2022, he was granted access by (IT Director) Tony Rakes. He recognized the value of such evidence early in the investigation,” stated Andrian.
Andrian wrote, “However, it is clear that throughout the investigation Porter decided that Mr. Weer had no involvement in the payments and was in no way responsible. Porter initially gathered the evidence, showing he recognized its importance. However, he failed to preserve it in any way or apparently even review them at all.”
Andrian concluded, “This amounts to bad faith.”
A “collapsed internal archive system”, eh? Kind of makes it sound like a tree blowing over in the wind, but it isn’t. Someone did something they shouldn’t have. Apparently, it was the guy grinning behind his shades. The whole thing has become another costly embarrassment.
‘Bad Faith’ appears to be an understatement of collusion involving an employee of Sheriff Department, the elected District Attorney,, with a parallel unsubstantiated ‘atta boy’ from the non vacillating County of Mendocino Board of Supervisors.