Attorneys for the County of Mendocino are attempting to block further sworn depositions by key officials about behind-the-scenes events leading to District Attorney David Eyster criminally charging former Auditor Chamise Cubbison and her subsequent suspension by the county Board of Supervisors.
Details of the highly politicized background, involving the DA, a board majority, and former and current county executives, are revealed in new court filings related to pending civil litigation filed by Cubbison.
The disclosures come on the eve of a long-awaited preliminary hearing this week in the felony criminal case Eyster filed 16 months ago against Cubbison. That hearing is set to begin on Wednesday before Judge Ann Moorman in Mendocino County Superior Court, Ukiah. Moorman will decide whether the contentious case will go to trial.
DA Eyster’s outsized role in county politics that ensnared Cubbison is the specific focus of recent depositions made under oath by retired Auditor Lloyd Weer and former county Treasurer Shari Schapmire as Cubbison’s companion civil case against the Board of Supervisors moves forward.
Cubbison’s civil attorney Therese Cannata, a top-rated business litigation lawyer in San Francisco, cites a private email from Eyster to former county Supervisor Glenn McGourty in August 2021 as the basis of an alleged collusion.
“Unbeknownst to Ms. Cubbison or the general public at that time, (DA) Eyster had sent a (confidential) cover email from his private email account to a board member” that outlined a three-step plan to permanently exclude Ms. Cubbison from becoming the county’s Auditor-Controller,” according to Cannata.
The first step of Eyster’s plan, outlined to Supervisor Glenn McCourty and shared by a former CEO with other board members and administrators, was to block the interim appointment of Cubbison, then consolidate the offices of Auditor-Controller with the Treasurer-Tax Collector position, and ultimately replace those elected positions with a board-appointed Director of Finance who would report directly to county Supervisors. The first two steps were initiated by the board, but the last step went awry when Cubbison was elected by county voters to lead the consolidated offices.
Cannata contends that when the Kennedy extra pay issue came under investigation, prompted by Cubbison’s own report to the County Counsel’s Office and the CEO of a threat of Kennedy litigation over uncompensated time, Eyster “seized the moment.”
It was, declares Cannata, Eyster’s “final step in his personal vendetta against Ms. Cubbison by making sure that the (subsequent) criminal investigation pointed” to her.
Eyster did not respond to a written request Thursday for comments on Cannata’s declaration that is on file with the Mendocino County Superior Court.
The District Attorney’s decision to criminally charge Cubbison in October 2023 led to the Auditor being abruptly escorted from her office by county administrators. Four days later the Board of Supervisors voted to suspend Cubbison without pay and benefits based on Eyster’s filing a felony misappropriation of public funds charge against her and the county’s former Payroll Manager, Paula June Kennedy.
The criminal case has dragged on for 16 months because of legal wrangling over missing county emails, and the possible role of retired Auditor Lloyd Weer in the payments made to Kennedy. Under oath, Weer acknowledges he was aware of the chronic pay issue but he denies giving Kennedy permission to use an obscure county pay code to draw about $68,000 in extra pay over a three-year-period during the Covid pandemic. In turn, Cubbison says Weer and Kennedy struck the pay deal, and she was too swamped by the forced office consolidation when she took over to closely scrutinize it.
Emerging details of the Cubbison civil case are providing a deeper look into the background of events that has rocked county politics and set the Board of Supervisors on a costly path to resolve the dual Cubbison criminal and civil cases.
The new court filings describe the roles of Eyster, former county supervisor McGourty, then Board Chair Dan Gjerde, coast Supervisor Ted Williams and other top county administrators played during a tumultuous time that led up to the criminal charging of the embattled Auditor. Also cited in the filings are actions by current CEO Darcie Antle and former CEO Carmel Angelo.
Statements made by Weer and Schapmire under oath so far support allegations that Eyster became deeply engaged in county Supervisors’ controversial efforts to consolidate the county’s two key financial offices: Treasurer-Tax Collector and Auditor-Controller. It was clear to them, according to deposition transcripts, that Eyster was targeting Cubbison for ouster after she challenged his own DA’s office spending.
Schapmire recalled personal calls from supervisors Gjerde and Williams, among others, lobbying her to agree to take over both offices, an idea the veteran county employee resisted and which in protest led to her to retire nine months early.
“One of the reasons the Auditor-Controller is separate is so that they can question other entities, and clearly DA Dave Eyster had an issue with that as well because of a lot of his reimbursements, I think, she (Cubbison) did question,” testified Schapmire.
Schapmire added, “I just wondered why Dave Eyster was so out of his lane. I can’t even imagine me going over and talking about criminal justice issues.
Weer during his deposition in December acknowledged that while he was still Auditor his then chief assistant Cubbison was questioning Eyster’s use of public funds “to take his staff and their significant others to a dinner at the Broiler (steakhouse).”
Weer said the DA after being challenged changed his rationale and labeled the annual gatherings “training sessions.” Eyster initially wanted county funds to cover the estimated annual costs of about $2,500 but then after questions were raised, Weer said the DA demanded local “asset forfeiture” funds seized in drugs and other related criminal cases be used to cover expenses. How the seized money is used has long been a source of controversy at local, state, and national levels because of potential abuse.
Weer testified that eventually Eyster convinced former CEO Angelo and the county board to exempt the DA’s office from certain county policy provisions “in order that we didn’t have to go head-to-head against him all the time because he refused to follow the proper policy and procedures.”
“Yeah, I mean, (he) made our job difficult to deal with, you know, and so if the board’s just going to cave and support him, then (supervisors) can change their policy was the thinking,” testified Weer.
Attorney Cannata said the board’s 2023 decision to suspend Cubbison was unlawful because “it was based solely on the charging document filed by the District Attorney without a hearing or inquiry into the allegation of misconduct.”
“Had that hearing taken place, it would have demonstrated that the District Attorney improperly targeted Ms. Cubbison in the investigation and failed to gather and/or preserve exculpatory evidence,” contends Cannata.
Cannata argues in her 14-page brief that the criminal case is part of a broader county conspiracy to oust Cubbison, who along with other senior county financial personnel questioned county supervisors’ forced consolidation of the Auditor and Treasurer’s offices.
As far back as August 2021 key county officials worked behind closed doors with Eyster to target Cubbison, charges Cannata.
As evidence, Cannata alleges the board attempted to fully implement a confidential three-step plan outlined in a private email from Eyster to then Supervisor McGourty, at the time when the board was poised to act on a recommendation by Weer that Cubbison be appointed his interim successor upon his planned early retirement.
The email dated Aug. 30, 2021, outlines Eyster’s vision to rid the county of Cubbison.
Eyster stated in the email:
“So, what do I think the board should do? First, vote no for Ms. Cubbison’s appointment and/or any promotion.
“Second, I would say the time is ripe to reap the advantages of consolidating offices, as was authorized and put in place by the Legislature in 2017.”
(The legislative change was put in place in 2006).
Eyster in his private email then advocated that Schapmire should be placed in charge of a single merged office knowing the 40-year veteran county employee was planning to retire at the end of her term in 2022.
Eyster’s third step advocated that when Schapmire announced her expected retirement, county Supervisors should quickly pursue voter approval of a ballot measure to do away with the elected offices in favor of a “single financial department under the supervision of a highly qualified Director of Finance who would report directly” to the Board of Supervisors.
Before the board meeting when the vote was taken to force consolidation, former CEO Carmel Angelo circulated Eyster’s memo among top county staff, including Antle, then Angelo’s top assistant, and Janelle Rau, former director of the county’s General Services Agency.
Eyster’s plan went awry when Schapmire retired early in protest of the enforced consolidation, and her top assistant refused supervisors’ entreaties to seek election as head of the newly combined offices. Instead, to the dismay of the DA and county supervisors, Cubbison ended up in 2022 being elected by voters to oversee the two merged departments struggling to reorganize.
County attorneys in the civil case are arguing that Weer and Schapmire’s testimonies, and others, are unlikely to produce admissible evidence outside the “narrow scope” of whether the Board of Supervisors had the authority to suspend Cubbison without giving her an opportunity to publicly defend herself. The board did it two weeks after the fact and were castigated publicly for their action.
Morin Jacob, the San Francisco attorney who is leading the efforts to shut down the depositions, also sanctioned the Board of Supervisors’ decision in October 2023 to suspend Cubbison without a hearing.
In court filings seeking to halt the depositions of Schapmire and Weer, Jacob contends that whatever information they can provide about the tumult surrounding the enforced consolidation is irrelevant because the only “central issue here is whether the county had the legal authority to suspend” Cubbison.
“Attempting to introduce evidence to this unrelated topic confuses the scope of this matter, and diverts attention from the primary legal question,” states Jacob.
Jacob also argues to the court that the continued depositions of Weer and Schapmire will be “unduly burdensome, costly, and intrusive with no likelihood of discovery of admissible evidence.”
Their further disclosures also could be “embarrassing,” states Jacob.
“The real motive for the deposition is clear. Petitioner (Cubbison) has been charged with a felony, and she would like to blur the lines between the issues in the criminal matter” and the pending civil case, contends Jacob.
Cannata, however, said she believes the court, and the public, are entitled to know the full extent of the alleged collusion among DA Eyster, board members and county administrators that led to the disputed finance office merger, and the subsequent criminal case and suspension of a duly elected County Auditor.
Cannata said when the disputed pay issue emerged, DA Eyster “masterfully controlled the investigation and complaint process to wrongfully target Ms. Cubbison as the wrongdoer.”
As a result, Cannata said the “cause” cited by board members for Cubbison’s removal from office was “based solely on the charging document filed by the District Attorney without a hearing or inquiry into the allegation of misconduct.”
Weer, as he has from the beginning of the Cubbison case, declined to be interviewed about his statements given under oath during his deposition.
Brian Momsen, Weer’s attorney, said this week his client “didn’t bring the motion for a protective order to stop his deposition, the county attorneys brought it.”
Weer “will abide by whatever ruling the Court makes on the motion,” said Momsen.
Jacob’s office said the San Francisco attorney was “out of the office for a case” and unavailable to respond. Jacob associate Madeline Cline (no relation to the county supervisor of the same name) did not respond to a written request for comment.
Judge Moorman, who is presiding over both the Cubbison criminal and civil cases, is expected to hear arguments about the disputed depositions when the criminal preliminary hearing is concluded.
This whole clusterf#$k was avoidable. A prime example of a solution seeking a problem. Cubbison and Kennedy will own Mendocino County when this is over.