Criminal charges were dismissed Tuesday against Mendocino County Auditor Chamise Cubbison, who was, in fact, labeled a “whistleblower” by Superior Court Judge Ann Moorman.
Chamise Cubbison (Contributed)Moorman’s ruling ended a high-profile case that spanned two years, rocked county government, and provoked allegations that District Attorney David Eyster had targeted Cubbison, a fellow elected county official after she challenged his office’s spending.
Tuesday’s decision was a stinging rebuke to Eyster and an emotional victory for Cubbison, co-defendant Paula June Kennedy, the county’s former payroll manager, and the lawyers who represented them.
“The judge did the right thing,” said Chris Andrian, a noted Sonoma County defense attorney who represented Cubbison. Kennedy attorney FredRicco McCurry, a Mendocino County public defender, had pleaded with Judge Moorman to toss the case “in the interest of justice.”
Paula June Kennedy (Contributed)Cubbison’s civil attorneys said Tuesday evening that now that she is free of the criminal case, they will push for her return as the elected Mendocino County Auditor/Controller/Treasurer/Tax Collector.
San Francisco attorney Therese Cannata said, “On behalf of Ms. Cubbison, we will be demanding immediate reinstatement.”
Cannata said Cubbison, suspended from her $176,000 post without pay and benefits in October 2023, will also vigorously pursue her pending civil lawsuit against the county Board of Supervisors for denying her due process.
The court’s dismissal of the criminal case increases Cubbison’s potential for collecting significant civil damages from the county, including attorney fees, loss of wages and benefits, and professional reputation.
The financial stakes are high.
DA prosecution and county costs defending against the civil litigation are already estimated to be three-to-four times the $68,000 in disputed extra pay paid to Kennedy for work during the Covid pandemic that DA David Eyster claimed in October 2023 amounted to felony misappropriation of public funds.
David Eyster (Contributed)Eyster stepped up the ante for taxpayers when, within four months of accusing Cubbison of criminal misconduct, he chose to hire outside prosecutor Traci Carrillo of Santa Rosa at the rate of $400 per hour to try the case. Civil attorneys defending the county Board of Supervisors already have billed about $120,000 in fees and services.
Cubbison had to pay out-of-pocket to retain Andrian and his investigator, Chris Reynolds, to fight Eyster’s criminal charges.
Cubbison and her supporters believe DA Eyster targeted her for challenging him. Eyster initially blocked her interim appointment as auditor in 2022 and then secretly promoted a plan of some county administrators and members of the Board of Supervisors to merge the county’s two key finance offices in hopes of eventually creating a Department of Finance under board control.
Eyster seized the moment when the disputed internal pay issue surfaced about Kennedy collecting $68,000 in extra pay during the COVID pandemic. The DA turned his team of investigators on the case after the Sheriff’s Office submitted its results, and in October 2023, the DA filed felony criminal charges against Cubbison and Kennedy, accusing them of misappropriating public funds.
For Cubbison, Tuesday’s dismissal was also vindication for being blamed by county supervisors for the tangled state of county finances, mainly without merit.
Cubbison risked a criminal record after she refused Eyster’s original offer to only face a misdemeanor charge if she resigned from her post.
From the beginning, the Cubbison case was complicated by Eyster’s contentious relationship with the auditor and two others who served before her.
Cubbison ran afoul of Eyster after she challenged DA office spending, including for staff dinners he labeled “training sessions.”
For 17 months, more questions than answers were raised as the case moved sluggishly through the courts.
How the original investigation was handled by Sheriff Lt. Andrew Porter, a 30-year law enforcement veteran, was scrutinized during the preliminary hearing. Porter acknowledged during his testimony that he had access to county emails and other documentation when he started to probe the Kennedy extra pay. However, he still did not act to preserve them. Within months, it was discovered that the county archival system had collapsed, throwing case documentation efforts into disarray. Eventually, many documents were retrieved, but no one, including a court-appointed master, could determine how much relevant material might be missing.
In recent days, documentation issues took another turn when it was learned that top county officials and former Auditor Lloyd Weer had been provided regular bi-monthly reports since 2019 showing Kennedy had been open about using a miscellaneous county pay code to add extra money to her own paycheck.
During testimony at the preliminary hearing, Weer, CEO Darcie Antle, and others said they were unaware of the payments. Still, the internal payroll documents produced by the DA’s Office at the last minute showed otherwise.
Moorman was critical of what she learned as witnesses were cross-examined during the preliminary hearing. Ultimately, the judge said she believed Cubbison and Kennedy had been transparent in their actions and had not engaged in illegal activities over the pay issue.
“If anybody had read the reports, it was clear what she (Kennedy) was doing. She was transparent about serious pay issues that no one at the county management level had resolved,” said Moorman.
Moorman also believed Cubbison did not know the details of a likely extra pay arrangement between Kennedy and Weer before she took charge of the office when Weer retired early.
According to Moorman, Cubbison acted as a “whistleblower” when she informed the County Counsel’s Office of Kennedy’s threatened legal action if her chronic pay issues were not resolved.
Moorman said about Cubbison, “She did the right thing. She did not try to cover anything up.”
Moorman blamed evidentiary problems on Lt. Porter, who she felt had acted unprofessionally regarding the white-collar crimes issues involved.
“He failed to preserve email evidence when he had access to it before the system collapsed,” said Moorman. “The system collapse wasn’t his fault, but his failure to preserve evidence when he had access was,” said Moorman.
The judge also found that the investigator didn’t follow up on questionable issues relating to retired Weer and Kennedy.
Moorman was scornful of Weer’s role in the case and his denial on the witness stand that he might have mistakenly let Kennedy think she had permission to use an obscure county pay code to reimburse herself, a salaried employee, for the chronic hours she was putting in.
“I don’t believe him,” declared Moorman. The judge cited Weer’s evasive answers as a prosecution witness and his “defensive demeanor.”
Moorman expressed dismay about the “willful ignorance” shown by county officials who testified during the preliminary hearing that they knew nothing about the 470 county code Kennedy was accused of using to pay herself. The code is typically used within departments to cover miscellaneous expenses up to $1,000 without approval from the Board of Supervisors.
Moorman said the exculpatory evidence turned over by District Attorney Chief Investigator Andrew Alvarado during the final days of the hearing only underscored in her mind how “transparent” the defendants had been about events leading up to Eyster’s decision to file felony charges.
The documents showed that county payroll reports detailing Kennedy’s extra pay had been distributed twice monthly to top county officials, including Weer and CEO Antle and her staff over three years, yet no one questioned why.
“It was all there if anyone had bothered to look,” said Moorman.
Moorman’s decision to dismiss the criminal case brought relief to the faces of Cubbison, Kennedy, and their lawyers. The two exonerated employees showed signs of relief as they hugged their attorneys following Moorman’s statement that their criminal case was dismissed.
McCurry earlier pleaded with Moorman on Kennedy’s behalf.
“There is no evidence of any criminal intent. There is only evidence that this employee worked herself into a state of exhaustion,” said McCurry.
McCurry added, “The taxpayers still owe her for work done under very difficult circumstances.”
Cubbison lawyer Andrian said the prosecution evidence was questionable and, in most instances, unable to be documented beyond any reasonable doubt.
Prosecutor Carrillo said she respected Moorman’s decision “based on how the evidence came out and the various issues that presented themselves.”
“This is exactly the type of case that sometimes needs to simply play out and be challenged at a preliminary hearing in a transparent manner (versus a grand jury proceeding) to further evaluate the totality of the evidence,” said Carrillo.
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