Mendocino County Auditor’s Felony Charges Uncover District Attorney’s Alleged Misuse of Public Funds”

attorney-general-announces-1-7-million-settlement-with-five-gas-station-owners-for-environmental-violations-in-mendocino-lake-sonoma-and-other-counties/image-8-14/” data-orig-file=”https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?fit=1392%2C782&ssl=1″ data-orig-size=”1392,782″ data-comments-opened=”1″ data-image-meta=”{"aperture":"0","credit":"","camera":"","caption":"","created_timestamp":"0","copyright":"","focal_length":"0","iso":"0","shutter_speed":"0","title":"","orientation":"0"}” data-image-title=”LadyJusticeMuralFeatured” data-image-description=”” data-image-caption=”<p>Lady Justice mural in the Mendocino County courthouse [Picture by Matt LaFever]</p> ” data-medium-file=”https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?fit=300%2C169&ssl=1″ data-large-file=”https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?fit=696%2C391&ssl=1″ src=”https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?resize=696%2C391&ssl=1″ alt=”LadyJusticeMuralFeatured” class=”wp-image-61304″ srcset=”https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?resize=1024%2C575&ssl=1 1024w, https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?resize=300%2C169&ssl=1 300w, https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?resize=768%2C431&ssl=1 768w, https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?resize=150%2C84&ssl=1 150w, https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?resize=696%2C391&ssl=1 696w, https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?resize=1068%2C600&ssl=1 1068w, https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?resize=1200%2C674&ssl=1 1200w, https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?resize=600%2C337&ssl=1 600w, https://i0.wp.com/mendofever.com/wp-content/uploads/2023/03/image-8.png?w=1392&ssl=1 1392w” sizes=”(max-width: 696px) 100vw, 696px” data-recalc-dims=”1″/>Lady Justice mural in the Mendocino County courthouse [Picture by Matt LaFever]

When suspended Mendocino County Auditor Chamise Cubbison appears in court on Tuesday to enter an expected not guilty plea to a felony charge of misappropriation of public funds, it is not just her handling of internal money matters that will be center stage.

District attorney David Eyster’s own alleged misuse of public funds regarding staff dinners and travel expenses is also under intense scrutiny, emerging as a key element in legal efforts to bar the DA from personally prosecuting another elected official that he has battled with for years over office spending. 

Mendocino County Superior Court Judge Keith Faulder will hear arguments Tuesday to recuse Eyster from prosecution of the suspended Auditor. Cubbison and co-defendant Paula June Kennedy, the county’s former payroll manager, are finally expected to enter pleas to the charges the DA has leveled against them. Their plea entries have been delayed since October because of wrangling over Eyster’s role in Cubbison’s prosecution.

In a new court filing Friday, Cubbison attorney Chris Andrian argued that “Mr. Eyster’s retaliatory behavior toward Ms. Cubbison clearly demonstrates that he has an axe to grind with her,” and that he is attempting to prosecute the Auditor for “the same misuse of public funds she alleged of him.”

For Andrian, a noted Sonoma County defense attorney, the filing was a stinging rebuke to the state attorney General’s announced decision this past Tuesday not to intervene in the case. The AG’s San Francisco office issued an opinion that it found “no actual proof” of conflict on Eyster’s part, and that the DA has not subjected Cubbison to “unfair treatment.”

Andrian said he will ask Faulder, who has the final decision, to formally recuse Eyster at Tuesday’s scheduled court hearing from prosecuting the criminal case. 

Andrian said there in fact is evidence of Eyster’s conflict of interest based on his “prior treatment of Ms. Cubbison,” and his “retaliatory decision to prosecute Ms. Cubbison for the same misuse of public funds she alleged of him.”

Specifically, Andrian cited the DA’s demand of Cubbison in 2018 and 2019 to use public asset forfeiture funds to cover staff dinners at the Broiler Steak House for dozens of employees, and their guests. Eyster labeled the dinners “End of Year Staff Workshop and Continuing Education.” Cubbison questioned the public picking up the $2,400 tab for all dinner guests at a so-called office training workshop and said at best the county should only reimburse for actual costs associated with DA employees.

Andrian also cited the time Cubbison drew attention to the DA’s alleged personal use of county funds when she challenged the validity of his reimbursement claim for the travel expenses of a deputy prosecutor, and her live-in partner that included hotel, air fare and conference costs and totaled in excess of $1,000.

“In response to Ms. Cubbison’s shining a light on his misuse of public funds, Mr. Eyster began a campaign against Ms. Cubbison and her job, culminating in the filing of a criminal complaint against Ms. Cubbison alleging the very same misuse of public funds.”

Andrian said Eyster’s behavior toward Cubbison “goes beyond creating a perception of improper influence.”

“He took action against her after she refused to bend to his will and accept his reimbursement claims,” charged Andrian.

Andrian said Eyster needs to be removed as prosecutor, and the Cubbison case independently reviewed and judged on its own merits.

Eyster has engaged in running disputes with the Auditor’s Office since 2011 when he took office. In 2021, he took the extraordinary step of publicly denouncing Cubbison when she was up for appointment as acting Auditor because of the early retirement of then Auditor Lloyd Weer. The DA told the Board of Supervisors she was unqualified, and that he personally favored a board plan to force a controversial consolidation of the county’s two independent financial review offices – Auditor/Controller and Treasurer/Tax Collector – in hopes of eventually creating a new Department of Finance more closely aligned with board offices and the County Executive Office.

Cubbison, a 16 year veteran county employee, in 2022 was elected by county voters to lead the newly consolidated offices, to the chagrin of Eyster and county board members who had publicly questioned her abilities.

New court filings show that in September 2022 county CEO Darcie Antle and County Counsel Christian Curtis met with Eyster and outlined their suspicions about the extra pay made to Kennedy beginning three years earlier. A sheriff’s investigation was launched but it was more than a year before Eyster chose to file felony charges against Cubbison and Kennedy. Before he acted, the DA offered to file only a misdemeanor charge against Cubbison if she resigned as Auditor.

Cubbison chose to fight the accusations, contending she did not personally benefit from the extra pay. attorney Andrian said there is no doubt the pay was for work Kennedy completed under difficult circumstances during the pandemic. “My client did not receive one penny of the money paid out,” said Andrian.

“Can there be any doubt that District attorney Eyster has an axe to grind against defendant Cubbison?” argued Andrian in his submitted written argument to Judge Faulder.

Eyster, in a declaration filed within two hours of last week’s AG opinion, outlined for the first time his criminal case against the Auditor, and the county’s former payroll manager.

The DA accused Cubbison of using an obscure county pay code to allow Kennedy to collect $68,100 in extra salary for work done during the Covid pandemic. Eyster claims the code was used in hopes of not drawing attention of county administrators or the board, neither of whom had authorized the extra pay.

 Cubbison claims the extra pay deal was reached between retired Auditor Weer and Kennedy before she won election to be his successor. Eyster counters in his declaration that Weer and Kennedy in statements given to investigators deny they engaged in the extra pay ‘scheme,’ and that it was Cubbison who solely allowed the unauthorized payments.

Cubbison and attorney Andrian contend what is really behind the high profile criminal case is a vendetta waged by Eyster after she repeatedly questioned his office’s spending. The DA has tangled with three different Auditors over spending related issues since he took office in January 2011.

Cubbison, when acting as Assistant County Auditor, took her ongoing concerns about the DA’s spending practices to a San Francisco law firm hired by the county Board of Supervisors for advice on internal issues.

In February 2020 Cubbison warned Morin Jacob, managing partner of the Liebert Cassidy Whitmore law firm that long-standing issues with Eyster were becoming more contentious. It was clear in Cubbison’s detailed letter to the firm that she was seeking advice on how to deal with a DA that had waged a decade long battle with the Auditor’s Office over use of asset forfeiture funds, travel reimbursements, and now a so-called evening training session for staff and their guests at the iconic local steak house.

Jacob’s response lacked clarity that Cubbison sought, so she wrote again. Cubbison again noted discrepancies between the legal advice offered and existing county policies. Cubbison received no response from attorney Jacob to her follow up.

Instead, a few months later, the Board of Supervisors suddenly amended county travel policies to specifically exempt the DA from usual procedures and changing the authorities of the Auditor’s Office. Cubbison said as a result the county is likely no longer in conformity with federal IRS requirements “as they relate to the DA’s Office travel.”

The Cubbison criminal case has triggered a public uproar, promising a lengthy and costly legal struggle for taxpayers if it goes to trial. The Board of Supervisors also faces potential legal challenge to its arbitrary suspension of Cubbison without pay before she was even given an opportunity to publicly speak in her own defense. 

Cubbison was locked out of her office after Eyster filed his criminal charges, and personally escorted out of the county’s buildings by CEO Antle and County Counsel Christian, according to internal documents. A few days later, the board voted to suspend her without pay before she or her attorney had a chance to offer any public explanation.

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