Mendocino Superior Court Judge Ann Moorman signaled Monday that she may wait until a scheduled preliminary hearing later this month to decide whether to rule on defense motions to toss a contentious felony criminal case against suspended Mendocino County Auditor Chamise Cubbison.
After listening all day to the testimonies of three key witnesses, Moorman said she needed more time to “reflect” on what she heard about the possible role of retired Auditor Lloyd Weer in the case, and whether the collapse of a County email archival system has hampered a full review of potential evidence.
Weer testified under oath he had no part in any extra pay agreement prosecutors alleged was reached between Cubbison and co-defendant Paula June Kennedy, the County’s former Payroll Manager. Kennedy, who also faces a single felony charge, is accused of conspiring to receive $68,000 in extra pay over a three-year period during the Covid pandemic. Weer said he knew nothing about an obscure pay code that the two veteran County employees are alleged to have used to compensate Kennedy for hundreds of hours of extra time over the period in question.
Weer admitted that Kennedy racked up extra hours doing a difficult job during the pandemic, and that he and Cubbison, his then assistant, had multiple discussions about how to ease the situation. He acknowledged Kennedy and he had directly talked about ways to get around no overtime restrictions for managers in her position, based on what other county employees may have been doing. Weer, however, was evasive about how direct his role was in any outcome, and whether he misled investigators by initially denying any talks with Kennedy.
“We struggled to find answers, but I did not authorize what is alleged,” said Weer.
Lt. Andrew Porter, the Sheriff’s investigator who turned over the case to Eyster’s office, admitted under oath he only preserved one of hundreds of emails he had reviewed among Weer, Cubbison and Kennedy which were later found to be missing after the discovery of a collapsed County archival system. Porter, a veteran officer, also acknowledged telling Weer early on he was not part of the ongoing investigation even though he [Weer] had been suspended from acting as a special consultant once the criminal probe was launched.
Porter agreed that he had tried to “build rapport” with Weer during his investigation by telling him he should not have been suspended by Cubbison, and that he was going to help “fix that.”
Cubbison attorney Chris Andrian pointed out that it was his client who triggered the criminal probe by informing County officials of a Kennedy threat to quit and file a lawsuit over her alleged 390 hours of uncompensated hours.
“If she were part of a criminal conspiracy, why would she do that? Did you consider that?” demanded Andrian.
Porter had no answer.
Tony Rakes, now a deputy County CEO who once was the direct manager of IT services for the County, testified that when he took over in May 2022, he discovered the county had no email retention policy. Then, when the Cubbison case began to unfold, he and the IT department learned the County’s archival system had been corrupted.
Rakes said an outside company informed him a month ago that it may be possible to “capture” missing emails among Weer, Cubbison and Kennedy but “they are not available today.”
Moorman questioned the witnesses during the hearing, and at one point she noted conflicts in Weer’s testimony. She also ordered Weer to provide “yes” or “no” responses to questions rather than vague answers.
At the end of the day, Moorman said, “I am not prepared to rule. I need to take time to reflect on what I have heard today.”
Moorman agreed to hear final arguments on Wednesday afternoon from defense attorneys, and from Special Prosecutor Traci Carrillo, the outside attorney who is prosecuting the case for Eyster at $400 per hour. She opposes the dismissal motions.
Moorman said she is leaning toward hearing what evidence prosecutor Carrillo may produce at the preliminary hearing before acting on defense motions to dismiss the case before trial. “That hearing is later this month,” said Moorman.
The politically laced case has dragged on for 15 months because of legal challenges to Eyster’s decision, and the discovery of how the County’s former archival email system collapsed in 2023.
Cubbison had become a target of Eyster’s wrath after she, as then Assistant Auditor-Controller, challenged his office’s spending practices. The DA took the extraordinary step of publicly denouncing her before the county Board of Supervisors and blocking her appointment as interim Auditor when Weer resigned early. Cubbison was elected Auditor a year later by County voters over the opposition of Eyster, and members of the County board.
When Eyster filed the felony case against Cubbison, county Supervisors immediately suspended her without pay and benefits. Cubbison was not given an opportunity by the board to respond publicly prior to the suspension. Cubbison has a pending civil lawsuit against the county alleging she was denied “due process.”
What shred of credibility can Eyster claim after all of this?