Mendocino County Today: Wednesday, September 3, 2014

• Supes' Response to GJ
• AVHC Meeting Notes
• AVA Open House
• The Man He Killed
• Catch of the Day
• Ukraine Dilemma
• Expendable Wetlands
• DA's Response to GJ

RATHER THAN ACTING as “Supervisors” who oversee the actions of their subordinates, the Mendocino County Board of Supervisors prefers to insult the messenger, in this case the Mendocino County Grand Jury. The GJ's sin? They described an obvious “appearance of a conflict of interest” on the part of Mendo’s Mental Health Director Tom Pinizzotto.

AT ITS Tuesday, (26th of August) meeting the Supervisors declared that the privatization of County Mental Health services to a private business called Ortner Management Group, Pinizzotto's former employer, was hunky-dory. Then the Supes approved a letter denouncing the Grand Jury for even suggesting that Pinizzotto's conflict could possibly be untoward, if not crooked.

“THE BOARD of Supervisors believes this Grand Jury report was written in a way that unfairly impugns the integrity of an individual and the process for awarding contracts for mental health services. The report found no evidence that any individual had an actual conflict of interest, profited personally, committed any illegal actions, or exercised undue influence concerning the process for awarding the contracts in question.”

ONE MORE TIME: A man previously employed by a privately operated mental health services company in Marysville, in his new capacity as an Director of Mendocino County Mental Health, arranges the sale of Mendocino County Mental Health to his previous employer, Ortner Management Group. The multi-year deal is worth upwards of $6.7 million a year to Ortner.

THAT PILLAR of ethical conduct, Dan Hamburg, commented, “It’s pretty obvious that there’s a huge disconnect between the Grand Jury and this board. What is the Grand Jury really up to? I really have to shake my head?”

HAMBURG ADDED that many people in his district are “really inflamed.”

REALLY? Names! We've talked to people “inflamed” at the breathtaking sleaziness involved here, but who could possibly be “inflamed” at the GJ for simply pointing out the obvious.

“I AGREE,” chipped in Supervisor John McCowen who drafted the memo denouncing the Grand Jury. “The memo is intended to ask the Grand Jury to take a look at what they are doing and why.”

FIRST OFF, the Grand Jury never accused Pinizzotto of personally profiting, committing any illegal actions or exercising undue influence; in fact the GJ went to great lengths to note that they weren't accusing Mr. P of wrongdoing. (In our opinion, the GJ was much kinder than they needed to be.)

THE “appearance of a conflict of interest” is true on its face because the contract was awarded to Pinizzotto’s recent former employer, a simple fact that is not in dispute. Indeed, that simple fact makes it an ACTUAL conflict of interest, not just an “appearance” of a conflict of interest because the conflict arises from the situation, not from identifiable personal aggrandizement on the part of the conflicter.

IN EVERY DAY COURT CASES, judges and jurors routinely recuse themselves from involvement in matters they have, or have had, some personal involvement with — i.e., a conflict of interest — even though there may not be any actual bias or favor, because such things, including government contracts, should be free of the taint of a conflict and not be subject to a later complaint that the decider was influenced by anything other than the merits of the case.

BUT HERE we have the County Board of Supervisors not only approving this blatant conflict of interest in County contracting, but denouncing the Grand Jury for pointing it out.

AND WHO SHOULD show up before the Supervisors to laud the Supes for their indictment of the Grand Jury for simply doing its job? Tom Pinizzotto! Pinizzotto is paid upwards of $90,000 by his new employers, Mendocino County. A smarmy little fellow of the type prevalent at the County's power levers, Pinizzotto read out a tedious paen to what a swell job his former employer is now doing for the people of Mendocino County!

WEIRD, BIZARRE, & COMPLTELY NUTS

Anderson Valley Health Center: Update on meeting of directors, August 25, 2014.

by Gene Herr, Philo

The Anderson Valley Advertiser of last Wednesday says the people to whom the Editor spoke called this meeting “weird, bizarre, and completely nuts.” If you were not at the meeting, you may have heard accounts that confirm that. It was one of the most puzzling and peculiar meetings of any civic body that I have ever seen. There was no agenda posted. Chair Ric Bonner had to go out to get copies for directors and some extra, called the meeting to order, asked for May 19^th minutes approval (not read, none available for review), approved by affirmation, no June minutes, no July minutes. (The Board is required to have public meetings, and to keep accurate records of meetings of directors and of action committees. The AVHC website now has the May and June minutes of Board meetings posted. Committee action is sometimes reported to directors but no written record is posted.)

25 MINUTES FOR PUBLIC COMMENT. Board Chair Ric Bonner opened public and Board comment for a scheduled 25 minutes. Around forty people, some who are becoming regulars at the Health Center’s directors’ meetings, and some there for the first time, spoke to support Mark Apfel, praising his skills, and his past work as founder of the clinic, and objecting strongly to the Board’s removal of him as Medical Director. Typical was this letter to this list, from Philo potters Jan Wax and Chris Bing. “I don't know of any other doctors, besides Mark Apfel, who make house calls. My 98 yr. old mother is too weak to visit a medical office. Mark takes the time to see her, when needed, before he goes to work at the Health Center. I'm appalled at the treatment he is receiving after all these years of good service to our community.”

Others warned the Board that their actions would result in the destruction of the Center, the loss of community support, and the financial donations which keep the clinic operational. AVCSD director Fred Martin said he had circulated a petition at the Ambulance Benefit, asking directors to resign because they were “polarizing the community over a pissing contest with Apfel, and they should get over it and get a whole new board.” Judy Nelson, retired AVHC RN, asked for a Board “responsive to the community, otherwise we have lost the clinic.” Philo Cakebread co-houser Daniel Myers repeated his remarks (in last week’s AVA) about having been push-polled by someone at his residence asking if he knew of any incident of Apfel’s malfeasance. He said the Board has a liability if they do not step in to stop the defamation, and offered to provide the name of the person involved so the Board would know who “was behind the agenda.” Michael Nissenberg, Elk Master Weaver, emphatically said the Board should “give us the grace of leaving voluntarily…we need new members who would work past the past and bring us into the future.” He said the criticism (of Apfel) comes from consultants who “want your money, want your building, your grants.” This refers to the fact that the neighboring clinics that provide members of the “shared service model of administration” fobbed off on the AVHC as a trial condition of the initial HRSA operations grant, are all competitors for the same pot of grant money and the same patient clients as AVHC, an apparent conflict of interest. Nissenberg also questioned AV school superintendent JR Collins’ participating in grant applications for school-related programs, calling that too a conflict. As speaker after speaker voiced support of Apfel and questioned why he had been removed as medical director and treated so rudely, Board Chair Ric Bonner closed the comment period over audience protest. Director Eric Labowitz said he did not want Mark to leave and was trying to find a solution and there were questions of personnel confidentiality, legality and non-compliance.

ACTION ON PUBLIC COMMENT? To a final question as to when the community could expect an outline of Board goals, Bonner said he needed time to carefully consider Board goals and ask the Board how to respond. This, in the face of the primary responsibility of a public benefit non-profit corporate Board of directors to clearly state and further the purpose of the corporation, is an outrageous admission of the failure of duty of this board. It is also the first public admission of division and paralysis of the directors, who normally hear committee reports in silence and approve unanimously without discussion.

EXECUTIVE OFFICER’S REPORT. Case in point was the presentation of a largely inaudible report (no written report) from Executive Director Shannon Spiller who refused to take questions from “the public” and specifically refused to take questions from Mark Apfel. I think Spiller told directors that new doctor Logan McGhan is on board, starting Friday, 9-5, Medical Director Dr. David Gorchoff (no report) will be in the area Sept. 8, on site and with Favi (Faviola Cornejo, Operations Officer) to visit a Guerneville clinic with a Patient Centered Home designation (a label which allows the clinic to be covered for liability claims by the Federal Government, saving about $22,000 per year in insurance costs — figures all approximate). Something was done with the HIT care evaluation in some way relating to $44,000. The Dental Care has a new camera to take pictures of teeth. The clinic continues to look for insurance services for sliding scale medical care. [Note this one, this was thought to be one of the goals of the grant to get more patients covered by the affordable care act. Remember the discussion three months or so back about how some insurance claims were not being paid due to errors in the application form. I hope someone is following up on that.] The QI (Quality Improvement?) team issues resulted in internal training for venipuncture. Looking at PHQ9 (according to the web “The PHQ-9 is the nine item depression scale of the Patient Health Questionnaire*. It can be a powerful tool to assist clinicians with diagnosing depression”. Spiller said nothing about who is contemplating mandated use, where.) Della (no clue who) and (Anderson Valley School’s Donna Pierson Pugh will implement needs assessment somewhere. Michelle (Amboise sp?, new RN) will be working 2 days a week at the school. Brook (no last name, Americorps) is working in reproductive services. Obesity reduction by 2% Someone is working on Dispensary procedures and formulary. All providers are blocked in for scheduled conference on opiate prescribing at ARCH (Alliance for Rural Community Health — ARCH is a collaboration of eight community health centers in Mendocino County — this outfit has no regulatory authority or function). There was no board discussion.

MEDICAL OFFICER’S REPORT. There was no medical officer’s report.

OPERATING OFFICER’S REPORT. Cornejo reported the auditor is here for a week. New billing procedure? Cost $.16 per statement. (possible translation, last month they were checking the possibility of a new billing procedure through the shared services model of management. As many of you know problems with accurate and timely billing have plagued the clinic for years. Considering the problems and the number of administrative staff involved, this issue deserves more information than is presented here. Cornejo will be gone on a CLI (?) trip this week. There was no Board discussion.

FINANCE COMMITTEE REPORT. Ric Bonner announced the Committee met “earlier” and had approved the July monthly reports and recommended approval. The Board approved unanimously with no discussion. (You will recall that July is the start of a new fiscal year, and a new 2014/15 budget, and we have no report of approval of an “adjusted” 2013/14 budget nor an end of year report.) One very important issue left hanging was the disposition of a reported $200,000 + gift to be applied to payment of the building loan debt, and diverted in the spring for possible operations costs. Was that gift used as the donor intended or is there a failure of fiduciary duty here? This is a vital issue for the Clinic and has become lost in the anger and contention over the unbelievably destructive personnel practices of both management and the directors. We owe the US Department of Agriculture, Rural Development Community Facilities, Loans and Grants program a large amount (how much not clearly and repeatedly and publically stated) for our clinic. If we prepay our monthly payments, the Principle is reduced. We run the clinic at a consistent historical loss (revenue vs. expenses—around $120/130k as near as I can figure, but this information should also be blazoned in red ink and discussed openly and constantly) which we are presently offsetting by having received substantial grants from the US Health and Human Resources Agency. (The Health Resources and Services Administration (HRSA) is an agency of the U.S. Department of Health and Human Services located in Rockville, Maryland. Our grants are supervised out of region IX in San Francisco, by a “project officer”. The project officer organizes site visit teams to visit grant recipients to evaluate the program. Access to the team reports are not available to the public either. I do not know if they are available to the Board? In any case Bonner reported unanimous approval of a request to approve revisions (unspecified) to line items in malpractice insurance and computer training in the 2014/15 budget, and without further or any discussion the directors unanimously approved the report. Directors then unanimously authorized Spiller to enter into a contract with Judith Waterman, accountant and owner of Price Waterman accounting firm of Ukiah, to serve as AVHC Chief Financial Officer “on an as needed basis ” with no discussion.

PERFORMANCE IMPROVEMENT REPORT. Director Parker moved to closed session, Gorchoff’s input not received.

BUILDING AND GROUNDS. Wally Hopkins reported “Pablo” (who is?) has sprayed the green weeds, will mow the dry stuff later. And the toilet will again be fixed. (There must be a perennial or systemic problem here, but it is not discussed.)

CLOSED SESSION. The Board moved to closed session to discuss report of latest performance improvement committee meeting; to discuss public input rules; and to assign Board action items.

* * *

MY SLANT: Pick your topics, write the directors, tell them what you want done, and offer any help you are qualified to do. Nevermind if they have previously told you they do not need your help or (the new tactic, “you do not meet the demographic”). Make this offer public. Ask them which directors’ terms expire in December; which intend to continue; how the present directors are filling the needs of the corporation. Ask them who serves on which committees of the corporation and how their selection was made. Ask them to specify committee member qualifications and where the committee reports are posted. Ask them to require and post written staff reports as a part of the required permanent record of corporation affairs.

— Gene Herr, Philo

=============================

THE BOONVILLE CLINIC is in trouble for reasons partly described in yesterday's scattergun blasts, which also included a predictably weasel-lipped communication from the Clinic's board of directors. A long-time Anderson Valley resident wrote today: “What if the Clinic Board were to resign tomorrow, would we have a group of of people ready to step in and govern the Clinic the way we would like to see it governed? Maybe some of you are already working quietly on this. If not, maybe it is time to do it. It is not going to be easy to find people with the skills, willing to make the commitment and take the chance that the Clinic might not keep its federal funding under their guidance.”

TO WHICH The Editor just had to toss in his two bits worth: “Hello everyone, Mr. Negative here. If the board suddenly resigned the new board would be exactly the same because, like all the boards in Boonville (and Mendocino County for that matter), these self-selected personages seem genetically programmed to serve, no questions asked, the people they allegedly supervise. The Clinic may be doomed. This board signed off on a financially disastrous expansion that has both put the Clinic in a serious fiscal hole and placed the Clinic in a more complicated federal paperwork category. Natch, libs being libs, the Clinic board isn't about to point out that the Anderson Valley Health Center is another huge subsidy for Mendocino County's new rulers, the Aristocracy of the Grape. The wineries and vineyards get free health care for their underpaid workers. And etc.”

THE MAN HE KILLED

Had he and I but met

By some old ancient inn,

We should have set us down to wet

Right many a nipperkin!

But ranged as infantry,

And staring face to face,

I shot at him as he at me,

And killed him in his place.

I shot him dead because--

Because he was my foe,

Just so: my foe of course he was;

That's clear enough; although

He thought he'd 'list, perhaps,

Off-hand like--just as I--

Was out of work--had sold his traps--

No other reason why.

Yes; quaint and curious war is!

You shoot a fellow down

You'd treat, if met where any bar is,

Or help to half a crown.

--Thomas Hardy

CATCH OF THE DAY, September 2, 2014

JOHN FRYMAN, Willits. Probation revocation.

SANTIAGO GONZALEZ-CEJA, Ukiah. Failure to appear.

ADAM MOYNIHAN, Berkeley. DUI.

CHARLES REECE, Mendocino. Failure to appear.

ANTHONY ROMANO, Fort Bragg. Drunk in public.

ARMANDO RUIZ-GUEVARA, Willits. Kidnapping, elder abuse, battery on emergency personnel, resisting arrest. (Photo not available.)

ALEX SANCHEZ, Fort Bragg. Picking a fight. Conspiring to pick a fight.

MARIO SANCHEZ, Fort Bragg. Assault with a deadly weapon, conspiracy to fight.

DANIEL TAYLOR, Ukiah. Violation of County parole.

JENNIFER TINSLEY, Ukiah. Petty theft, court order violation.

ON-LINE COMMENT OF THE DAY

Ukraine has been a failing state since its independence from the former Soviet Union more than 20 years prior. Since then, it’s been one of the most corrupt states in the former Soviet sphere.

To call any corrupt government regime in Ukraine “elected” is a joke, whether it was Western friendly or Russian friendly.

I’m not taking sides in this fabricated conflict and debate. Both Russia and The West shouldn’t be meddling, but let’s face it, the amount of meddling is not equivalent. Putin has pretty much invaded unconventionally. The West has encouraged and goaded Ukraine but offered very little in substantial assistance.

It’s possible to criticize Putin and not advocate for American intervention. If you put your head in the sand, do you really believe Putin would just stop at Ukraine without some form of resistance from The West?

Using the argument that “what complicates things is that Ukraine is right next door to Russia. For many years it was even part of the same nation as Russia” serves as a basis for irredentism. The same argument can be applied to a de facto invasion and destabilization of all the former Soviet bloc states.

Of course, the rebuttal to that would be Putin isn’t mad — he wouldn’t do such a thing. Maybe not, but what if he does? Where would your red line be, if you have one? What if he goes for Poland after demolishing Ukraine and picking up the pieces? Would that be a red line? I’m not sure NATO has one. I seriously believe if he went after Poland once he’s accomplished destabilizing Ukraine entirely, NATO would back down and let him have it.

We’ll see. The next five to eight years will be very interesting. If only we had a Chrystal Ball.

DOES JARED HUFFMAN DECIDE when wetlands are expendable? Your representative in Congress, Jared Huffman, presents himself as a champion of the environment. But here's some disturbing information.

* * *

From: Norman Solomon, Coalition for Grassroots Progress
<info@grassrootsprogress.org>
Subject: Who decides when wetlands are expendable?

In case you missed it, here’s a report by Will Parrish of the Anderson Valley Advertiser of Boonville, Ca, about the curious case of Congressman Jared Huffman, the Willits Bypass, and the wetlands that got in the way.

Congressman Huffman intervened in the previously stalled Caltrans project in Willits that required “the largest filling in of wetlands in northern California in more than 50 years.”

Although further legal action by local environmental groups may cause temporary delays, Huffman’s intervention allows the project on this thirty-acre wetland to proceed with little further review under the Clean Water Act, even though Caltrans was in non-compliance with its construction permit under that act.

Why did Congressman Huffman, a former attorney for the Natural Resources Defense Council who now sits on the House of Representatives Committee on Natural Resources, intervene in this case?

Meanwhile, the November general election will be upon us before we know it. Be on the lookout for the Coalition for Grassroots Progress endorsement announcement, coming very soon. From elections for Congress to local school board elections, we have all the evidence we need to show us that elections have consequences and your vote matters.

The Coalition for Grassroots Progress is an independent community-based political action committee for progressive change. We support progressive candidates and issues. We organize by precinct in the North Bay, providing the tools that CGP activists need to increase the progressive vote in their precincts. If you'd like more information about this CGP program, Progress in Our Precincts, please contact us.

If you support the work we are doing, please consider a donation to CGP today. A recurring or Sustainer donation of even $5 or $10 a month, will help us provide the tools and materials needed to support CGP activists organizing their precincts today. We welcome recurring and one-time donations of any size. Please give what you can.

We understand that many of us are not in a position to donate at this time and sharing this email with friends and colleagues is another way to show your support.

In solidarity, Coalition for Grassroots Progress

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www.RootsAction.org

DISTRICT ATTORNEY’S RESPONSE TO MENDOCINO COUNTY GRAND JURY RE: COUNTY OF DELIVERY OF ANIMAL CONTROL SERVICES, REPORT DATED JUNE 9, 2014

Mendocino County District Attorney David Eyster respectfully submits the following response to the 2013-2014 Mendocino County Grand Jury report entitled, County Delivery of Animal Control Services, a document dated June 9, 2014. The response to that Grand Jury report has been personally prepared by District Attorney David Eyster. It partially relies on and presents information and data maintained in the DA’s data management systems.

As the District Attorney, I am disappointed with the aforementioned report, as all citizens of Mendocino County should be. This report – on its face – manifests a wholly inadequate and incomplete investigation, yet still seeks to make recommendations regarding the District Attorney’s scope of oversight, duty to review crime reports, and responsibility where appropriate to initiate the prosecution of a certain category of defendant. From the District Attorney’s perspective, this is a cursory and incomplete work in progress. How could it be possible that the Grand Jury failed to seek input from the District Attorney or his staff prior to making “findings” and “recommendations” that directly comment on and relate to the business of the District Attorney? Moreover, the Grand Jury did not attempt to investigate whether one or more witnesses it may have heard from had personal agendas and/or may have provided inaccurate or incomplete information, which in the final analysis seems to be the case. The accuracy of information received by the Grand Jury, or lack thereof, could have easily been fact-checked based on available electronic records maintained in the District Attorney’s two record management systems, in public records maintained by the courts, or in the Sheriff’s data management system. The District Attorney has had a professional and cordial business relationship with the Grand Jury since taking office in January 2011 and hopes that relationship continues. However, that relationship notwithstanding, this report is lacking.

That having been said, I wish to make further specific comments as to follow: Grand Jury Findings:

F6. Animal Control does not have adequate policy and procedures to meet the best practices criteria for handling large animal abuse or neglect cases.

District Attorney’s Response:

The District Attorney has inadequate information to agree with or deny this finding. Animal Control is not a unit of the District Attorney’s Office. Animal Control personnel do not work for and are not under the supervision of the District Attorney or any member of his staff. The District Attorney has never been tasked – by statute or otherwise – with developing policy and procedures for Animal Control personnel. In the case of Animal Control, it is asserted that development of policy and procedures for Animal Control personnel currently lies with the Sheriff or his assignees.

F7. There are no mutually agreed upon written procedures that cover responsibilities, contacts, logistics, and other items for large animal integrated operations involving the community and multiple agencies of the County.

District Attorney’s Response:

The District Attorney has inadequate information to agree with or deny this finding. Animal Control is not a unit of the District Attorney’s Office. Animal Control’s personnel do not work for and are not under the supervision the District Attorney or his staff. The District Attorney has never been tasked – by statute or otherwise – with developing policy and procedures for Animal Control personnel. Law or code enforcement agencies, including Animal Control, may submit completed investigatory and other reports to the District Attorney and, based on the content of such reports and available evidence, the District Attorney is tasked the responsibility of making charging decisions within the confines of applicable law.

F22. Veterinarians and Animal Control Officers are concerned about the District Attorney’s lack of prosecution of animal abuse or neglect cases.

District Attorney’s Response:

The District Attorney disagrees with this finding because there is no information provided to agree with.

First, that unnamed people may have concerns that are based on a false premise is a poor starting point for any rational discussion. It is also a poor ending point for what purports to be a thorough investigation.

Second, surprisingly, the Grand Jury failed to take follow-up testimony or even make inquiry of the District Attorney and his staff regarding what these unnamed people may have told the Grand Jury. It would have been easy for the Grand Jury to ask for and obtain data that would confirm or blow away claimed concerns regarding the extent of prosecution of animal abuse or neglect cases.

Third, the District Attorney has not been in receipt of any communications – letter, telephone, email, tweets, or personal contact -- expressing concerns by any state-licensed veterinarian who has been involved in the investigation of animal abuse or neglect cases in Mendocino County. I have an “open door” policy and a concerned veterinarian knowledgeable about the facts of a particular case would be welcome to discuss the specifics of a case with me. That has not happened.

Fourth, the District Attorney likewise is not in receipt of any communications -- letter, telephone, email, tweets, or personal contact -- expressing concerns of an Animal Control officer regarding the prosecution of Animal Control cases. Like all law enforcement officers, Animal Control officers have the ability to personally deliver their completed investigatory reports to the District Attorney. They may then explain their investigation to the District Attorney so as to emphasize the strengths of the evidence in a particular case, and the need, if any, for special handling. To the best of my knowledge, this personal presentation option has not been utilized by any Animal Control officer, though it is a commonly used by other law enforcement agencies, including other Sheriff personnel.

Fifth, Animal Control officers work for Sheriff Tom Allman. Sheriff Allman has never expressed any concern regarding the District Attorney’s review process and prosecution standards for animal abuse or neglect cases. Animal abuse or neglect cases are evaluated for criminal charging in the same manner as all other criminal submissions. Charging decisions are based on consistently-applied standards, state-wide evidentiary rules, case precedent, and the weight and credibility of available proof, not on the subjective concerns or outcry of unnamed individuals.

Ultimately, the Grand Jury should have taken steps to determine whether the witnesses they heard from accurately knew that of which they spoke. Have local Animal Control officers been submitting reams of reports to the District Attorney’s Office only to have those cases rejected after the District Attorney’s charging review? Let’s take a look ….

In calendar year 2011, Animal Control submitted only one (1) report for charging consideration by the DA. That single report was declined for prosecution by the Deputy District Attorney who reviewed it, noting that the rejection was in the interests of justice. Animal Control personnel did not seek further review of this declination by the District Attorney or his management-level attorneys, as is allowed.

In calendar year 2012, Animal Control submitted no reports for charging consideration by the DA.

In calendar year 2013, Animal Control submitted four (4) reports for charging consideration by the DA. Two reports were declined for prosecution based on the insufficiency of the evidence developed by Animal Control in the course of its investigation. The third report was combined with a separate Sheriff’s Office report and approved for combined charging in a single accusatory pleading. The charged defendant was ultimately convicted of misdemeanor animal neglect and is currently on court probation. The fourth report was approved for filing and the District Attorney has already obtained a felony conviction against that defendant for his misconduct.

During the first six months of 2014, Animal Control has submitted one report. That report was approved for charging.

In summary, Animal Control has submitted only six (6) reports in the last 42 months to the DA. Three reports were accepted for prosecution. Three reports were declined for prosecution – two of those three were returned for lack of evidence having been developed during Animal Control’s investigation so that any crime could be proven beyond a reasonable doubt to a jury with admissible evidence.

F23. The District Attorney’s reluctance to prosecute animal abuse cases, for whatever reason, has led to abusive owners keeping the abused animals longer.

District Attorney’s Response:

The Grand Jury’s “finding” or cursory conclusion that the District Attorney is reluctant to prosecute animal is, again, not supported by fact. Worse, beyond mixing apples and oranges, this statement is just plain wrong. It bears repeating that the Grand Jurors responsible for this report did not ask to speak with the District Attorney or his staff prior to making this false finding. The Grand Jury did not review records – or even ask to review records – maintained by the District Attorney’s Office relating to animal abuse or neglect submissions and filings, records that factually demonstrate no reluctance on the part of the District Attorney to prosecute such cases.

Had the Grand Jury exercised due diligence and actually reviewed available public and in-house records, it would have discovered that the District Attorney has indeed been diligent in the prosecution of animal abuse or neglect cases, and has been winning convictions on these cases since taking office in January 2011. The Grand Jury would have also learned that Animal Control is not the only law enforcement “game” in town. Other law enforcement agencies – perhaps more experienced in investigations, evidence collection, and report writing – have had their animal abuse or neglect cases reviewed, approved, and prosecuted.

Examples of actual animal cases that the Grand Jury should have reviewed to determine whether the District Attorney’s Office has actually been prosecuting animal abuse or neglect cases with no hint of reluctance are the following: In calendar year 2013, Animal Control submitted four (4) reports for charging consideration by the DA. Two reports were declined for prosecution based on the insufficiency of the evidence developed by Animal Control in the course of its investigation. The third report was combined with a separate Sheriff’s Office report and approved for combined charging in a single accusatory pleading. The charged defendant was ultimately convicted of misdemeanor animal neglect and is currently on court probation. The fourth report was approved for filing and the District Attorney has already obtained a felony conviction against that defendant for his misconduct.

During the first six months of 2014, Animal Control has submitted one report. That report was approved for charging.

In summary, Animal Control has submitted only six (6) reports in the last 42 months to the DA. Three reports were accepted for prosecution. Three reports were declined for prosecution – two of those three were returned for lack of evidence having been developed during Animal Control’s investigation so that any crime could be proven beyond a reasonable doubt to a jury with admissible evidence.

F23. The District Attorney’s reluctance to prosecute animal abuse cases, for whatever reason, has led to abusive owners keeping the abused animals longer.

District Attorney’s Response:

The Grand Jury’s “finding” or cursory conclusion that the District Attorney is reluctant to prosecute animal is, again, not supported by fact. Worse, beyond mixing apples and oranges, this statement is just plain wrong. It bears repeating that the Grand Jurors responsible for this report did not ask to speak with the District Attorney or his staff prior to making this false finding. The Grand Jury did not review records – or even ask to review records – maintained by the District Attorney’s Office relating to animal abuse or neglect submissions and filings, records that factually demonstrate no reluctance on the part of the District Attorney to prosecute such cases.

Had the Grand Jury exercised due diligence and actually reviewed available public and in-house records, it would have discovered that the District Attorney has indeed been diligent in the prosecution of animal abuse or neglect cases, and has been winning convictions on these cases since taking office in January 2011. The Grand Jury would have also learned that Animal Control is not the only law enforcement “game” in town. Other law enforcement agencies – perhaps more experienced in investigations, evidence collection, and report writing – have had their animal abuse or neglect cases reviewed, approved, and prosecuted.

Examples of actual animal cases that the Grand Jury should have reviewed to determine whether the District Attorney’s Office has actually been prosecuting animal abuse or neglect cases with no hint of reluctance are the following: In calendar year 2013, Animal Control submitted four (4) reports for charging consideration by the DA. Two reports were declined for prosecution based on the insufficiency of the evidence developed by Animal Control in the course of its investigation. The third report was combined with a separate Sheriff’s Office report and approved for combined charging in a single accusatory pleading. The charged defendant was ultimately convicted of misdemeanor animal neglect and is currently on court probation. The fourth report was approved for filing and the District Attorney has already obtained a felony conviction against that defendant for his misconduct.

During the first six months of 2014, Animal Control has submitted one report. That report was approved for charging.

In summary, Animal Control has submitted only six (6) reports in the last 42 months to the DA. Three reports were accepted for prosecution. Three reports were declined for prosecution – two of those three were returned for lack of evidence having been developed during Animal Control’s investigation so that any crime could be proven beyond a reasonable doubt to a jury with admissible evidence.

F23. The District Attorney’s reluctance to prosecute animal abuse cases, for whatever reason, has led to abusive owners keeping the abused animals longer.

District Attorney’s Response:

The Grand Jury’s “finding” or cursory conclusion that the District Attorney is reluctant to prosecute animal is, again, not supported by fact. Worse, beyond mixing apples and oranges, this statement is just plain wrong. It bears repeating that the Grand Jurors responsible for this report did not ask to speak with the District Attorney or his staff prior to making this false finding. The Grand Jury did not review records – or even ask to review records – maintained by the District Attorney’s Office relating to animal abuse or neglect submissions and filings, records that factually demonstrate no reluctance on the part of the District Attorney to prosecute such cases.

Had the Grand Jury exercised due diligence and actually reviewed available public and in-house records, it would have discovered that the District Attorney has indeed been diligent in the prosecution of animal abuse or neglect cases, and has been winning convictions on these cases since taking office in January 2011. The Grand Jury would have also learned that Animal Control is not the only law enforcement “game” in town. Other law enforcement agencies – perhaps more experienced in investigations, evidence collection, and report writing – have had their animal abuse or neglect cases reviewed, approved, and prosecuted.

Examples of actual animal cases that the Grand Jury should have reviewed to determine whether the District Attorney’s Office has actually been prosecuting animal abuse or neglect cases with no hint of reluctance are the following:

Defendant Culpepper (14-76063) was sentenced to two years probation July 28, 2014, having pled no contest to misdemeanor animal abuse on June 2, 2014. The defendant was ordered to serve 180 days in the county jail as a condition of a two year term of probation (Submitted to the DA by Animal Control)

Defendant Gitchel (13-74286) was prosecuted and he is participating in rehabilitative Drug Court, as authorized by law, having pled no contest to felony animal abuse on November 5, 2013. (Submitted to the DA by Fish and Wildlife)

Defendant Phillips (13-75117) was convicted of misdemeanor maintaining a public nuisance relating to animals. She is now on 36 months probation, as of June 17, 2014, with court-ordered limitations on the number of animals she may possess and other terms and conditions. (Submitted to the DA by the Sheriff’s Office and Animal Control)

Defendant Lane (13-72623) was prosecuted and sentenced to state prison for felony animal abuse, having been convicted of that charge by jury. (Submitted to the DA by the Fort Bragg Police Department)

Defendant O’Brien (12-70506) was prosecuted and he is currently on supervised probation for felony animal abuse. (Submitted to the DA by the Sheriff’s Office)

Defendant Keiley (12-23121) was taken before a jury on misdemeanor animal abuse charges. He was found not guilty by that jury of his peers. (Submitted to the DA by the Fort Bragg Police Department)

Defendant Aceves (12-22933) was prosecuted and he is currently on supervised probation for misdemeanor animal abuse. (Submitted to the DA by the Willits Police Department)

Defendant Clemons (12-22404) was prosecuted but the magistrate refused to hold him to answer on the felony animal abuse charge. The court dismissed the case. (Submitted to the DA by the Fort Bragg Police Department)

Defendant Shamhart (12-2144) was prosecuted and convicted of misdemeanor animal neglect. (Submitted to the DA by Animal Control)

Defendant Lawrence (10-12531) was convicted by the prior administration of felony animal abuse and placed on supervised probation. The current District Attorney caused that supervised probation to be permanently revoked in 2011 and successfully argued for Lawrence to be sent to state prison in 2011 for violating probation. (Submitted to the DA by the Sheriff’s Office)

F24. Lack of prosecution leads to Animal Control putting more emphasis on working with abusive owners longer in an attempt to alter owner behavior before proceedings with removal of the animals.

District Attorney’s Response:

Again, the “lack of prosecution” finding by the Grand Jury necessarily assumes there has been an actual lack of prosecution, an assumption that is not borne out by the facts. It would have been preferable for the Grand Jury to review the prosecution record of the District Attorney prior to publishing such a bald-faced statement.

Further, the District Attorney does not agree with the overall premise that the District Attorney is somehow forcing Animal Control to do things it does not otherwise want to do. Animal Control has never discussed strategy with the District Attorney as to what reactive steps it should take in a particular case. Those day-to-day policies and strategies for addressing animal problems in Mendocino County are left to the officers and supervisors of Animal Control, and do not involve the District Attorney unless and until a crime investigation is completed and the reports relating to that investigation are submitted to the District Attorney for charging consideration. While the District Attorney has his own in-house investigators, Animal Control has never sought assistance from these more experienced investigators.

Accordingly, the District Attorney does not agree with this finding because it has no basis in fact.

Grand Jury Recommendations:

R4. Animal Control develop and regularly update formal policy and procedures for investigation and handling of large animal abuse or neglect cases. Policies and procedures including:

1. Addition of the investigating officer’s notes to the written case file b.When to close an animal abuse or neglect case c.Documentation of animal condition per best practices d.Decision Tree regarding when to call a Veterinarian e.Decision Tree when to confiscate an animal f.Logistical check list for animal removal g.Procedures for removal and transport of large animals h.Decision Tree regarding when to perform field euthanasia i.Filing a case with the District Attorney j.Complainant confidentiality rules

District Attorney’s Response:

It is not clear why the District Attorney has been asked to respond to this recommendation. As previously stated, Animal Control is not a part of the District Attorney’s Office and Animal Control’s personnel do not work for and are not under the supervision the District Attorney or his staff. The District Attorney has never been tasked – by statute or otherwise – with developing policy and procedures for Animal Control personnel. Law or code enforcement agencies, including Animal Control, submit finished investigatory and other reports to the District Attorney and, based on the content of such reports and available evidence, the District Attorney makes a charging decision within the confines of applicable law. Accordingly, the District Attorney does not agree with this recommendation to the extent that it implies there should be an involvement by the District Attorney in the Sheriff’s personnel matters and investigatory process.

R10. Board of Supervisors pass a County ordinance which forbids individuals found guilty of animal abuse from owning animals for a set period of time. (F24)

District Attorney’s Response:

It is not clear why the District Attorney has been asked to respond to this recommendation. The District Attorney is not counsel for the Board of Supervisors. That responsibility lies with the Office of County Counsel. Moreover, the District Attorney does not see the nexus between this recommendation and the finding to which it applies, especially since the District Attorney respectfully asserts the underlying finding is faulty and incomplete. Finally, this recommendation seeks to invade the province of the judiciary, as well as prosecutorial discretion. Once criminal liability has been admitted or found at trial, judges, with input from the prosecutor, defense attorney, and, in some cases, the probation officer, are responsible for crafting an appropriate sentence for the convicted offender. An appropriate sentence in some cases may be no animal ownership for the period of probation; in other cases, this would be an inappropriate sentence given the underlying facts and the law. The person in the best position to make the final decision on this is the judge who has heard all the facts and understands the law. Accordingly, the District Attorney does not agree with this recommendation.

R10. The District Attorney and the County Sheriff meet to establish guidelines setting forth the standards necessary to refer a case to the District Attorney’s Office for prosecution. (F22, F23, F24)

District Attorney’s Response:

The District Attorney does not agree with this recommendation because guidelines and standards already exist and no additional or special guidelines and standards need be established for Animal Control.

The initial decision whether to file criminal charges in any case, and what those charges should be, is said to be the most critical step in the criminal justice process. This decision-making process, or gatekeeper role of the District Attorney, is guided by legal and ethical standards that require a reasonable belief that the charge or charges can be proven to a jury, unanimously, beyond a reasonable doubt, after considering reasonable defenses.

Whether by the District Attorney or one of his designated deputy prosecutors, every case presented by local law enforcement is thoroughly reviewed once submitted by the law enforcement agency to the District Attorney. The interested law enforcement agencies present their completed investigations for a legal review which results in one of several outcomes:

• The case may be accepted for the filing of a criminal charge or charges;
• The case may be declined for filing and returned to the agency; or
• There may be a request for additional investigative work that is needed before a final filing decision is warranted.

Ultimately the filing decision will be made based upon the specific facts of each case, including the physical evidence, witness statements and expert opinions that could be presented to a jury. These facts, including an assessment of witness credibility, are evaluated and weighed against the specific language of the criminal statutes to determine whether the facts support the proof of each element of the crime beyond a reasonable doubt.

If the facts support the necessary proof of each element of the crime beyond a reasonable doubt, a formal criminal charge is filed. If a determination is made that the facts do not support a reasonable belief that the charge can be proven beyond a reasonable doubt, there is a legal and ethical duty to decline to file charges. When a case is rejected for prosecution, it should not be inferred that the District Attorney and his deputy prosecutors believe the conduct described in the rejected report is lawful. Without further comment on the morality of what may be described in a report, the rejection of a crime report simply means there is one or more obvious legal problems at the outset that mandate that the case be declined for formal prosecution.

All law enforcement reports that are submitted by local Mendocino County agencies to be reviewed by the elected District Attorney or his designees are processed and considered within this legal and ethical framework.

C. David Eyster Mendocino County District Attorney