By now everyone is aware that the sordid saga that was the politically-motivated prosecution, i.e. persecution, of two women who are long-time county officials, was thrown out of court a week ago.
As aptly and succinctly reported by Mike Geniella on Feb. 25th, “Mendocino County, Superior Court Judge Ann Moorman dismissed the case against auditor Chamise Cubbison. She ripped the investigation, county officials, and said there was no evidence of any criminal intent. Dig deep, taxpayers.”
Mucho kudos to Geniella, who did an outstanding job producing an award-winning series on the infamous Cubbison affair. Geniella’s the OG journalist in these parts and beyond.
The Supervisors along with their ethically-challenged, outright incompetent staff, are in a huge hurt locker. DA Dave Eyster, the mastermind behind the plotting ad conniving that resulted in criminal charges being brought against Cubbison and payroll manager Paula Kennedy, should be sanctioned if not disbarred by the California Bar Association.
All politics aside, I am personally embarrassed to live and work in a county that is as dysfunctional as this one appears to be.
Our elected representatives and their staff far too often flummox themselves and disrupt the orderliness of the governing process by creating problems seemingly out of thin air.
The Cubbison case never rose above the level an administrative/personnel quandary over how to process payment for undisputed hours worked by County payroll manager Paula Kennedy during the COVID emergency.
In personnel or labor relations matters, we call such things grievances, and they are resolved via grievance procedures when employees are covered under collective bargaining agreements. Where these types of pay disputes involve non-bargaining unit management employees who are not subject to collective bargaining agreements, they are resolved by whatever internal administrative remedies and procedures are established for management personnel. In either case, when there is no dispute regarding whether the hours were actually worked and the pay earned, does the situation ever meet the criteria for criminal prosecution.
As someone who is a certified labor relations practitioner, I can tell you I handled many, many pay claims, overtime claims, pay rate classification claims, etc., and in all those years, not a single time did management ever give a fleeting thought to filing criminal charges.
You are barred from the front door of courtrooms in any attempt to do so. The first question the judge asks is, “What are you doing in my court? You say the employee actually worked the hours in question and was paid for those hours worked. You say you have a labor contract with a grievance procedure, and you have dispute procedures for management officials to resolve pay disputes. This is not a criminal matter. It is a civil administrative matter that needs to be resolved by your own internal contractual procedures. If you exhaust those remedies and a dispute still remains, then you can file civil litigation to resolve your dispute. Now get the hell out of my court.”
Via these columns and in public comment at meetings, I warned the Supervisors, including some of the supervisors personally, that this case was going to sink them and saddle the taxpayers with a monstrous bill. None of them listened, they’re all smarter than us, don’t you know.
God bless Judge Ann Moorman for recognizing that the people who brought this case forward were, at best, being exceptionally economical with the truth. It’s a ploy long practiced in these kinds of politically motivated prosecutions. And usually it works. But not this time.
Instead of illegally suspending Cubbison in October of 2023, the Board should have postponed taking any action against Cubbison pending the completion of the rescheduled arraignment hearing. That way they would have had the opportunity to review what kind of evidence the D.A. was relying on, and whether the judge found it sufficient to proceed to trial. Who knows, the judge may have found the D.A. had insufficient evidence to hold Cubbison over for trial.
As I pointed out to the Supervisors numerous times, the proper way to have handled the Cubbison case was to have followed the law. California Government Code Section 1770 sets out the process: “An office becomes vacant on the happening of any of the following events before the expiration of the term:
“(h) His or her conviction of a felony or of any offense involving a violation of his or her official duties. An officer shall be deemed to have been convicted under this subdivision when trial court judgment is entered. For purposes of this subdivision, ‘trial court judgment’ means a judgment by the trial court either sentencing the officer or otherwise upholding and implementing the plea, verdict, or finding.”
It was that simple.
All the Supes had to do was leave Cubbison in office pending the trial court making a final decision, which the court has now rendered.
By following the law, the Supervisors would have avoided 17 months of turmoil and lousy unethical governing, solidifying this county’s reputation as one the most dysfunctional local governments in this state.
Without repeating any of the explanatory comments I made at our Town Council meeting the day following Superior Court Judge Moorman’s dismissal of the case against Cubbison and payroll manager Paula Kennedy, I asked Supervisor John Haschak if the County has reinstated the two women to their positions.
Haschak replied that Cubbison was “reinstated yesterday.” (Feb. 25), the same day of Moorman’s ruling. When I asked him about Ms. Kennedy’s status, Haschak replied, “I can’t talk about that.”
When I said, “I’m assuming you can’t reply because that’s counsel’s advice,” he responded in the affirmative.
I closed off our discussion by asking Haschak if the Supervisors are planning to send Cubbison and Kennedy public letters of apology given Judge Moorman’s dismissal ruling, buttressed by her scathing reproach of the conduct and performance of bullying high-ranking county officials and their criminal justice counterparts who were hell-bent on prosecuting/persecuting two innocent women. Again, Haschak politely declined comment.
Regardless of what their incompetent attorneys are telling them, they owe Cubbison and Kennedy public apologies, as well as the citizens of this county.
Now the Supes, because they failed miserably to do their jobs, are headed for a civil trial that they will certainly lose, and the taxpayers will be on the hook for untold monetary damages.
In fact, next Wednesday, March 12, the Supes have scheduled a closed session to “Conference with Legal Counsel - Existing Litigation: One Case - Cubbison v. County of Mendocino, et al., Mendocino County Superior Court, Case No. 23CV01231.”
It shouldn’t require much of a conference for the combined brain trusts that will be gathered together next Wednesday to realize the dire straits their actions have put this county and its residents in: “Pay me now or pay me later, but you are going to pay.”
Thanks to our Supervisors, we are all going to be paying for this expensive remedial lesson teaching them the basics of how-to-do-your-job.
In this case the rule is just because people like the D.A., your CEO, and your County Counsel tell you to do something, you don’t have to follow their advice-cum-orders.
Political graveyards are full of politicians who don’t follow that rule.
(Jim Shields is the Mendocino County Observer’s editor and publisher, observer@pacific.net, the long-time district manager of the Laytonville County Water District, and is also chairman of the Laytonville Area Municipal Advisory Council. Listen to his radio program “This and That” every Saturday at 12 noon on KPFN 105.1 FM)
Be First to Comment