The Latest Twist: Cubbison Dimissal Decision To Come After Jan 22 Preliminary

Superior Court Judge Ann Moorman and attorneys agreed Wednesday to move ahead with a long-awaited preliminary hearing on criminal charges facing suspended Auditor Chamise Cubbison before the court decides whether to toss the case.

Cubbison and co-defendant Paula June Kennedy, the County of Mendocino’s former Payroll Manager, have waited 15 months for a preliminary hearing – typically the first major step in a criminal case – to be conducted while attorneys, judges, and the court wrangled over details surrounding a contentious case laced with county politics.

Cubbison attorney Chris Andrian and Fred McCurry, a county Public Defender representing Kennedy, agreed to argue their motions to have the case dismissed at the conclusion of an expected two-day preliminary hearing Jan. 22-23.

“This makes sense,” said Judge Moorman. Earlier in the week, after a day-long hearing on defense motions to dismiss the case, Moorman said she was leaning toward hearing prosecution evidence before ruling on the defense bids to stop the case from going to trial.

At issue is the possible role of retired Auditor Lloyd Weer in an office decision to allow Kennedy to use an obscure payroll code for extra pay over a three-year period because of unpaid hours during the Covid pandemic, and determination whether the collapse of an internal county email archival system hampered review of evidence that might have helped explain what happened.

On Wednesday during a Zoom meeting, Judge Moorman agreed to a new defense proposal to argue the merits of dismissing the case at the conclusion of the preliminary hearing later this month. The arrangement includes having testimony from three key witnesses given at a day-long hearing included as evidence at the preliminary hearing, along with a court-ordered transcript.

Concurring was Special prosecutor Traci Carrillo, a former Sonoma County prosecutor and criminal attorney hired by Mendocino County District Attorney David Eyster to try the Cubbison case. Carrillo received a $10,000 retainer and is receiving $400 per hour for her work under the terms of a contract Eyster reached with her.

On Monday, former Auditor Weer denied any direct approval of extra pay for Kennedy as her hours began to exceed the allowable compensatory time off for department managers. Weer acknowledged, however, that he had multiple meetings about the issue with Cubbison, and others. Weer also admitted meeting once with Kennedy about the pay issue, when she noted other county employees in similar positions were able to collect extra pay. During an investigation by sheriff’s Lt. Andrew Porter, Weer had denied discussing the extra pay issue directly with Kennedy.

Lt. Porter admitted he had preserved a single email between Kennedy and Cubbison, when he had access to all the emails among the two, and Weer. Later, the archival system collapsed, and defense attorneys argued, and prosecutor Carrillo agrees, that a full record is now impossible to obtain.

Key points that became clear from Monday’s testimony from Weer, Porter and IT Manager/Deputy CEO Tony Rakes include:

• Cubbison did not personally benefit from the extra pay.
• Kennedy’s workload was not doubted, and there is no evidence that the extra pay was wrongly earned.
• Weer was still in charge of the Auditor’s Office when the extra pay started being made.
• Rakes and other county officials for years were aware of nagging internal email-related archival issues, and that until recently, there was no official county email retention policy.

In October 2023 Eyster charged Cubbison and Kennedy with a single felony count of misappropriation of public funds, accusing them of conspiring to use a so-called 470 pay code to cover the extra pay. Kennedy contends Cubbison authorized her use of the code. Cubbison, whose relationship with Kennedy is now strained, denies she conspired with her former colleague, and contends that any agreement was reached between Kennedy and Weer. In documents on file, internal pay memos submitted by Kennedy cite the extra pay “per Lloyd” and later, “per Lloyd/Chamise.”

Within days of Eyster’s criminal filing, the county Board of Supervisors suspended Cubbison without pay or benefits. The board did not grant the elected official an opportunity to publicly explain her action before acting. The lack of due process is the basis of pending civil litigation Cubbison has filed against County Supervisors.