In a stunning turn, legal proceedings in the criminal prosecution of suspended Mendocino County Auditor Chamise Cubbison ground to a halt Wednesday because of court scheduling conflicts and will not resume until Feb. 24.
The delay means Cubbison and her co-defendant Paula June Kennedy, who have already spent 16 months in legal limbo, will not know whether evidence presented so far by the District Attorney’s Office warrants their case going to trial or dismissed until the preliminary hearing concludes late next month.
Superior Court Judge Ann Moorman said at the end of Wednesday’s court session that pre-paid traveling plans involving county CEO Darcie Antle, a prime prosecution witness, and those of her own forced the lengthy delay.
The surprise announcement came at the conclusion of the fourth day of testimony which ended about 4 p.m. Wednesday. Hearing observers were visibly caught off guard.
Judge Moorman said, “I’m sorry but there really isn’t anything that can be done at this point.”
Witnesses during the preliminary hearing to date have been confined to law enforcement investigators and county staff, including department heads who are familiar with the details behind Kennedy, the County’s former Payroll Manager, paying herself about $68,000 in extra pay over a three-year period during the Covid pandemic. No one at the County level questions if Kennedy worked the number of hours required to single handedly process a complicated payroll for 1,200 county employees while working remotely.
CEO Antle last week testified that she felt it was “almost illegal” the number of hours required for Kennedy to process the County’s payroll. Antle acknowledged her office since 2019 had been locked in a struggle with Weer and then Cubbison over a push to shift payroll responsibility to CEO administrators. Weer and Cubbison were adamant in their opposition, contending independent oversight by the Auditor’s Office was critical, Antle stated.
At issue in the criminal case is who authorized the extra pay: Kennedy herself, Cubbison, and/or retired Auditor Lloyd Weer. Kennedy was a salaried employee not entitled to overtime. Kennedy had exhausted whatever limited compensatory time she earned.
Kennedy blames Cubbison, her immediate supervisor. Cubbison said the extra pay deal was worked out between Weer and Kennedy. Weer initially denied any involvement but later admitted to investigators that he had spoken with Kennedy about her chronic pay complaints and told her to investigate how other County employees were circumventing overtime restrictions for salaried positions.
How long it will take to wrap up the much-delayed preliminary hearing is unclear.
Even if witness testimony is finally concluded in February, time will be needed for final arguments and judicial consideration in this high-profile case laced with local politics.
Only at that point, will Judge Moorman be able to decide whether the District Attorney’s Office has presented enough evidence to move the case onto trial, or grant pending defense motions for dismissal.
In the meantime, there is a pending civil case that Cubbison has filed against the county Board of Supervisors for denying her due process before it suspended the embattled Auditor without pay or benefits.
A major element in that case is whether DA David Eyster, who wrangled with Cubbison over his own office’s spending, targeted the suspended Auditor for prosecution.
County supervisors in 2022, with the behind-the-scenes support of Eyster, overruled opposition from Cubbison and other senior County finance officials and forced the controversial consolidation of the independent Auditor-Controller and Treasurer-Tax Collector offices in hopes of creating a new Department of Finance under board control.
DA Eyster in a newly uncovered memo to former board member Glenn McGourty urged blocking Cubbison’s appointment as interim Auditor or any promotion when Weer retired. In the memo Eyster laid out a three-step consolidation plan in hopes Cubbison would be permanently blocked from leading the consolidated offices. Those hopes were thwarted, however, when Cubbison ran unopposed for election to oversee the combined offices and won.
The latest delay in legal proceedings is one more in a series that even Moorman at one point labeled “unfair” to the defendants.
The politically laced case has dragged on for 16 months. Only last week did it reach the preliminary hearing stage, a crucial first step in a felony prosecution.
Special prosecutor Traci Carrillo, a Sonoma County attorney hired by Eyster at a rate of $400 per hour, this week wrapped up her preliminary hearing case arguments.
Carrillo has been methodical about questioning witnesses and producing documents confirming Kennedy’s pay was not formally authorized. No evidence, however, has yet to be introduced to support any criminal intent, nor that Cubbison personally benefited from the extra pay for Kennedy.
Andrian and Fred McCurry, Public Defender for Kennedy, launched their defense this week by grilling key law enforcement witnesses.
DA Investigator Tom Kiely testified Wednesday he was present when Weer, the retired Auditor, was questioned about his alleged role. Kiely dismissed contentions that Weer had been given special consideration, including being allowed to have his wife present during questioning by investigators.
Kiely also brushed aside suggestions that internal questions had been raised about the quality of the initial investigation done by sheriff Lt. Andrew Porter.
“I think that’s unfair. He didn’t have all the information at first,” said Kiely.
Porter testified during the hearing that Kennedy was the only suspect in the criminal case at first but that later Cubbison became a suspect. Porter acknowledged meeting with DA Eyster about fifteen times during his investigation.
Weer was never the focus of the investigation despite his past efforts as Auditor to secure extra pay for Kennedy, said Porter.
The extra pay for Kennedy began in 2019 when she used an obscure county payroll code that typically is used to cover salary adjustments and miscellaneous expenses. The payments began while Weer was still the Auditor and continued until he retired two years later. Weer claims he never knew about them.
Danielle Grilli, a former Auditor office employee, testified Wednesday that Cubbison seemed “surprised” to learn about Kennedy’s use of the code when an internal probe unfolded.
“She asked me to run a system history,” said Grilli.
Attorney Andrian on behalf of Cubbison has raised the question of why the suspended Auditor, if directly involved in an unauthorized pay scheme, would have triggered a county investigation by reporting a written Kennedy threat to quit and sue.
For now, those and other questions surrounding the controversial case remain unanswered.
Still can’t believe the public has not held the BOS responsible for the entirety of this situation. That is the oath to that they swore yet take very little action in fulfilling. I remember going up to the podium and pleading for their intervention only to be ignored which is standard public official response to, anything, BEFORE the termination which should have never happened. Say nothing and prove me wrong is their code. That is a criminals code being used by our elected officials. Someday all the wash is going to be hung. These new board members better show me something soon on these issues or slide along in the shadows as most of the other board members. btw-the BOS took its action on the advice of now gone CC Christian Curtis…
Excellent reporting Mike G., always a pleasure getting your insights.
“Superior Court Judge Ann Moorman said at the end of Wednesday’s court session that pre-paid traveling plans involving county CEO Darcie Antle, a prime prosecution witness, and those of her own forced the lengthy delay.” (Geniella)
Since when do private vacation plans cancel scheduled court hearings? “See ya,” sing the judge and the CEO. “We gotta catch a plane.” This foul matter has got to be the longest preliminary hearing in County history, and isn’t the first time Judge Moorman has colluded with DA Eyster to obstruct justice. Remember the Murray case where major felonies were busted down to misdemeanors and probation?
So will the Prosecutions 400 bucks an hour hired hand continue to bill for this and that during this “Pause?”
I thought law and order guaranteed a Speedy Trial.
If the Judge eventually finds for the Prosecution, this mangled hocus-pocus situation will have appeal written all over it. And with that, the “Civil Case” against the County will gain in value.
What a County…
Ask around,
Laz
“…told her to investigate how other County employees were circumventing overtime restrictions for salaried positions.”
So it looks like some kind of precedent was already established. How often and to whose benefit does this go on? What a never ending mess. “pre-paid travel plans”? Gimme a break. And meanwhile, all the faithful are in a foaming lather about Trump. It’s a microcosm of the macrocosm.
Shame on Moorman for poor scheduling. I hope she and her court staff have figured out any other prepaid travel plans for any of the other witnesses for the end of February. It just looks like amateur hour. But then again, maybe that’s every hour in Mendocino. Kudos to Geneilla for doggedly following a case that would have otherwise completely slipped under the radar with these unacceptable delays. Maybe the new quarter billion dollar courthouse resembling a barcode will help!