Cubbison Case Prelim Resuming Amid New Disclosures

A preliminary hearing in the Chamise Cubbison criminal “misappropriation” case resumes Monday amid new disclosures about the roles of key County officials who allegedly engaged behind the scenes to oust the embattled Mendocino County Auditor-Controller.

Mendocino County CEO Darcie Antle is expected to face rigorous questioning from defense attorneys when she resumes testimony about events leading up to Cubbison’s suspension by the Board of Supervisors in October 2023. The move against an elected official rocked the local political establishment and fueled a community controversy that continues, now more than 15 months later.

During a month-long pause in criminal proceedings Antle was identified in newly filed court documents of being a key participant with others including District Attorney David Eyster in events leading up to Cubbison’s charging and removal from office. Antle’s role is described in the documents as pushing for Cubbison to be criminally charged in politically laced efforts to force her from office.

According to the documents, Antle was among County administrators who supported the forced consolidation of two independent County financial offices. They hoped to eventually create a new Department of Finance under control of the County Supervisors. The board in fact did force the consolidation of the Auditor-Controller Office with the Treasurer-Tax Collector but the plan to create a new Department of Finance requires voter approval. The political fallout from the Cubbison case has raised doubts about a county-wide election anytime soon.

Besides Antle’s role, the new court filings elaborate on how DA Eyster, who was challenged by Cubbison about his own office spending, secretly presented a three-step plan to force a controversial consolidation plan.

Eyster is alleged to have filed a criminal felony charge of misappropriation of public funds against Cubbison after attempting for a year to pressure her into resigning in return for a misdemeanor criminal case. Cubbison chose to fight the allegations instead, and hired noted Sonoma County attorney Chris Andrian to defend herself.

The new court documents specifically cite the roles of Eyster, Antle, and former County Supervisor Glenn McGourty in embracing the secret three-step forced consolidation plan that the DA outlined to County administrators then, including former CEO Carmel Angelo. Eyster’s plan was part of his successful effort to block Cubbison’s appointment by the Board of Supervisors in 2022 as interim Auditor-Controller.

Cubbison eventually was elected by voters to lead the consolidated offices of Auditor-Controller and Treasurer-Tax Collector but within four months of her being sworn in, the Board of Supervisors suspended her without pay and benefits after Eyster filed the felony criminal case.

That case stems from the county’s former Payroll Manager Paula June Kennedy drawing about $68,000 in unauthorized extra pay over three years during the Covid pandemic. Kennedy is a co-defendant in the Cubbison criminal case that has been making its way at a snail’s pace 16 months after Eyster’s filing.

For now Antle is a key witness in a criminal prosecution that is seething with political tension. So far, the preliminary hearing has been focused on internal county pay processes and lack of oversight rather than hard evidence of any criminal intent. Testimony supports defense claims that Kennedy worked the hours paid for, and that Cubbison did not personally benefit from any of the extra pay.

For weeks Cubbison attorney Andrian has called it a case of “he said, she said, they said” because of the conflicting accounts given by Cubbison, Kennedy, retired Auditor Lloyd Weer, and County administrators about Kennedy’s work, the typical pay process for managers like her, and who may have given her the green light for any extra pay.

Looming large in the background, however, are emerging accusations in an acrimonious war of words related to the civil lawsuit Cubbison filed against the county Board of Supervisors and multiple “John Does.” Cubbison was suspended by supervisors without pay or benefits and locked out of her office by CEO Antle in October 2023 four days after Eyster filed his criminal case against the auditor.

A team of San Francisco lawyers representing the county in the civil litigation contend supervisors had to do so to “protect” the County treasury, justifying the use of a 1947 state code that is specifically applicable to only a County Treasurer. Cubbison had no connection to the County Treasurer’s Office until after the controversial consolidation, but the County’s attorneys argue the code became applicable to her because of the subsequent merged responsibilities.

Liebert-Cassidy-Whitmore is the San Francisco law firm that so far has been paid about $120,000 to defend County supervisors in the civil litigation.

In a new 26-page court filing, the firm’s attorneys accuse Cubbison of presenting “irrelevant and sensational claims to support a baseless conspiracy” allegedly waged by board members, Antle, County staff, and DA Eyster.

Cubbison and her civil lawyers are making a “libelous claim” that Eyster ensured that the criminal investigation pointed to Cubbison to “remove her from her elected office,” according to the Jan. 31 filing.

Attorneys Morin Jacobs and Madeline I. Cline (no relation to the First District Supervisor) also contend that Cubbison “asserts, without evidence, that the filing of the criminal complaint and her subsequent suspension were part of a coordinated effort.”

Cubbison civil attorney Therese Cannata of San Francisco, a noted labor law lawyer, filed a blistering response a week ago.

In it, Cannata said recorded interviews exist confirming that CEO Antle had “numerous communications with the District Attorney urging him to hurry up and bring criminal charges” against Cubbison.

Eyster, stated Cannata, delayed filing charges for a year while he tried to “extort Ms. Cubbison’s voluntary resignation.”

Cannata contended that during the year-long delay the DA and Antle were in “regular communication in 2022 and 2023 about how to pressure Ms. Cubbison to voluntarily resign from her duly elected office.”

The new revelations lend insight into what was going on behind closed doors at a time when the county board was blaming the Auditor’s office for delays in financial reporting and other updates. Some supervisors publicly suggested the county was failing fiscally but that proved untrue. The forced merger had consequences that senior finance staff warned would happen because of inadequate staffing, loss of experienced personnel, and a faulty computer system.

Eyster, a pugnacious prosecutor who quarreled with other County Auditors before Cubbison questioned his own office spending, has refused to publicly comment on his alleged larger role despite repeated written requests. Antle and other county officials involved also remain publicly mum except while testifying under oath.

Superior Court Judge Ann Moorman will hear final testimony in the preliminary hearing this week and is then expected to rule on whether the criminal case will go to trial. Moorman also could act on two pending motions to dismiss criminal charges that have been submitted by Andrian and Kennedy’s public defender FredRicco McCurry. The motions cite a lack of evidence.

Moorman is also overseeing proceedings in the civil litigation. It is occurring parallel to the criminal case although any outcome could be months away. A March 14 conference between Moorman and attorneys is scheduled.

When CEO Antle returns to the witness stand as the criminal preliminary hearing resumes Monday after a month-long break, she is likely to face a grueling cross examination. Special Prosecutor Traci Carrillo, a Sonoma County attorney hired by Eyster to press his case against Cubbison at a rate of $400 per hour, had said before the break she has no further witnesses.

So far, the preliminary hearing has slogged its way through questions surrounding internal county pay processes, and whether an overworked management employee was entitled to 390 hours of compensation after she exhausted compensatory time off beginning in 2019. A key issue is who oversaw the Auditor’s office payroll at the time Kennedy, who worked from home during the pandemic, began giving herself extra pay using an obscure county pay code.

Retired Auditor-Controller Lloyd Weer was still in charge of the office when Kennedy began to use the “470” code to reimburse herself for hours that everyone testified she worked, including Weer, Cubbison, Antle and lead sheriff’s investigator, Lt. Andrew Porter.

Weer denied giving any direct authorization although he testified he was aware of the chronic long hours Kennedy put in to single handedly produce the payroll every two weeks for 1,200 county employees, some of whom were themselves working from home. Weer acknowledged meeting with Kennedy and learning from her about two other salaried county managers who were receiving extra pay.

“I told her to look into it and maybe we could use the forms they were using,” Weer acknowledged.

Kennedy, a close office colleague of Weer, initially told investigators she never discussed the pay issue with him and pointed the finger instead at Cubbison for agreeing to the extra pay scheme.

Cubbison, a 16-year county veteran, with a reputation for being no-nonsense and stickler for process, has denied giving the green light to Kennedy. She maintains that the payments began two years before she became Weer’s successor, and at a time when she was swamped with County board demands to step up financial reporting and prepare for the threatened forced merger of the County’s two key finance offices.

Cubbison joined other senior county staff in opposing the merger, which was pushed through by County supervisors, and unknown until recent court filings, supported in the background by DA Eyster.

Attorney Cannata said it is clear that “several county officials” including Eyster targeted Ms. Cubbison and “took deliberate steps to derail” her career starting in the fall of 2021.

Eyster “devised a three-step plan to remove Ms. Cubbison from the Auditor’s Office and to appoint a Director of Finance, which is described in excruciating detail in an email to a sitting member of the Board of Supervisors,” according to Cannata’s most recent filing.

Former County Supervisor Glenn McGourty is identified in the email as the recipient of Eyster’s plan. McGourty has denied ever seeing it, suggesting “maybe it went to spam.”

However, in the new filing Cannata contends that the Eyster email landed in the hands of Antle, who was then Assistant Chief Executive Officer under former CEO Carmel Angelo. The email at the time was not made part of the Board of Supervisors’ minutes.

“This, and other emerging facts, support the inference that Ms. Antle, the Board of Supervisors, and other members of the executive office coordinated with Mr. Eyster to target [Cubbison] by concealing from the public any evidence of each other’s involvement,” according to Cannata’s filing.

“Even though Mr. Eyster’s plan was crafted in 2021, Mr. Eyster’s continuing campaign against Ms. Cubbison is evident in the way in which he directed a biased and incomplete criminal investigation in 2022, and his collaboration with Ms. Antle to pressure Ms. Cubbison to resign and, and later effect Ms. Cubbison’s suspension in October 2023.”

The County’s attorneys counter that Cubbison’s “reliance on unsupported and irrelevant claims is not only a distraction but indicative of the lack of substantial legal merit in her positions.”

Their legal brief argues that “The alleged conspiracies and grievances she raises, such as unfounded accusations about the District Attorney and Board of Supervisors conspiring against her, are entirely irrelevant to whether the board lawfully exercised its authority to suspend her” pursuant to a disputed state statute – Section 27120.

“The law does not mandate a pre-suspension hearing, and none of the speculative or sensational claims made by [Cubbison] alter that reality,” the San Francisco lawyers declare.

The government code, adopted by the state Legislature in 1947, is in dispute because it only identifies a County Treasurer who may be suspended by a Board of Supervisors “if an action based upon official misconduct is commenced.”

Some government attorneys argue that Section 27120 applies to the treasurer only, not the auditor and for good reason. A county Treasurer is entrusted to keep and invest public funds whereas an Auditor’s role is monitoring and approving disbursement of public funds.

They say that the reasoning is to ensure a system of checks and balances. A justification for an emergency suspension is obvious: a need to protect public money from a potentially dishonest Treasurer. Since the Auditor doesn’t have access to the actual public treasury that concern is not present, according to that theory.

County attorneys counter that later legislative action independent of that specific code allows for consolidation of county finance offices, thus providing a path for Cubbison to be suspended only two months after she was formally sworn in to oversee a newly consolidated Auditor-Controller-Treasurer-Tax Collector office forced by the Board of Supervisors.

The county’s law firm dismissed other contentions about Eyster’s role, including a chronic tug-of-war with the Auditor’s Office over his office spending practices, including staff dinners that skirted County prohibitions by labeling them “training sessions.”

“Whether or not the District Attorney sought changes to accounting practices for the benefit of his office is irrelevant to determining whether the Board of Supervisors had the authority to suspend [Cubbison] based on an ‘action’ for ‘official misconduct’.”

As for contentions that the DA conspired with board members and county administrators to remove her from office, the county attorneys dismissed the claim as “outlandish and relies solely on gossip blogs and online editorial articles, not factual evidence.”

Finally, county attorneys conclude that “A court cannot issue a writ of mandate that requires the county to do more than is required by law.”

On behalf of Cubbison, Cannata is seeking a writ to at the very least compel Antle’s deposition in the civil proceeding.

Cannata says Antle’s sworn testimony in the civil case is essential based on her declarations and documents produced during the criminal proceedings.

Among the issues cited by Cannata are:

• Antle’s rush to contact Eyster in September 2022 to initiate a criminal investigation into potential financial misconduct.
• Antle’s apparent “urgent desire” to see Cubbison face criminal charges.
• Antle’s coordination with the District Attorney to physically eject Cubbison from county offices.
• Antle’s presentation of an unnoticed, off agenda item to suspend Cubbison at the Oct. 17, 2023, meeting of the Board of Supervisors.

“The speed of which Ms. Antle and Mr. Eyster acted to suspend Ms. Cubbison from her position was breathtaking,” concluded Cannata.

Cannata said in fact “there is no sufficient evidence to support to Board of Supervisors’ decision to suspend Ms. Cubbison. The decision is arbitrary and capricious, and the decision is not supported by the evidence that has surfaced to date.”

Cannata is asking Judge Moorman at the very least to allow “more time for Ms. Cubbison to obtain additional discovery.”