Lawyer demands due process from Board of Supervisors
Chamise Cubbison, Mendocino County's Auditor-Controller Treasurer-Tax Collector, who was suspended from her elected office without salary or benefits two weeks ago, received overwhelming public support yesterday, when she appeared in court and before the Board of Supervisors. Her attorney, Chris Andrian, told the Board they had violated Cubbison’s right to due process. Members of the public expressed dismay about what they perceived as a failure of democracy.
On Friday the 13th, District Attorney David Eyster charged Cubbison with felony misappropriation of $68,000 in public funds, due to allegedly improper payments to an employee, Paula June Kennedy. Kennedy has also been charged. She is represented by alternate public defender Mary LeClair.
As the 9:00 hour of the arraignment drew near, dozens of Cubbison’s supporters, including several people who work in her office, filed into the courtroom. They filled both rows of seats in the jury box. They stood inside the door. Two of them held signs outside the courthouse. The defendants postponed their plea until 9:00 am on November 29th, to give the recently appointed LeClair time to go over the extensive discovery materials.
As this was taking place, Sara Pierce, a deputy CEO who is the board’s appointee to replace Cubbison, was reporting to the Board that she had come upon some outside bank accounts that she said have not been fully disclosed to outside auditors. This is one of the reasons she said she is unwilling to sign a management representation letter attesting to several items about a
draft Annual Comprehensive Financial Report, or ACFR, for fiscal year 21/22. She said these include acknowledging that, “No events, including instances of noncompliance, have occurred subsequent to the financial statement’s date and through the date of this letter that would require adjustment to or disclosure in the financial statement or in the scheduled findings of questioned costs…One of my concerns relates to the numerous bank accounts the county holds outside the Treasury, which have not been disclosed to outside auditors. While these accounts seem to be legitimate at first review, government code does not allow accounts to be held outside the Treasury, except for very specific circumstances.”
Not signing the letter will have repercussions. When Supervisor John Haschak asked clarifying questions, she told him that she had informed the state auditors about the outside accounts, which they had been unaware of. “With not signing the ACFR,” Haschak asked, “What implications will that have for our credit rating?”
“It will most likely decrease our credit rating, and we will not be able to go after grant funding,” Pierce replied. She reported further that, “As far as the fiscal year 22/23 year-end close, this will be delayed.” She added that she had just had her first conversation with auditors from the state controller’s office, who are examining the county’s finances at the request of the county’s largest labor union and the Board of Supervisors. No draft findings from the state controller’s auditors are available yet. She told the Board that, “Until draft findings are released, I cannot speculate if the findings are in full alignment with my concerns.” Perce said she has contacted the banks and is asking for details about bank statements and when the accounts were opened.
After lunch, Cubbison’s attorney, Chris Andrian of Santa Rosa, gave the Board of Supervisors a preview of the defense he will provide his client.
“There are certain cornerstone things that exist in our justice system,” he began, after being informed that he would not be allowed to call witnesses or ask questions. “They are the things called due process of law, presumption of innocence, and the idea that when an elected official is elected, he or she cannot be removed from office without cause, and without an opportunity to be heard. And that doesn’t mean for me to come in here today and tell you what I think about the criminal case. That’s not an opportunity to be heard. That’s an opportunity to have an actual evidence-taking procedure. And that has not been afforded to Ms. Cubbison. In other words, because a prosecutor makes a decision to file a criminal charge, she is still cloaked with that presumption of innocence…I think an important factor to remember here is the allegations against Ms. Cubbison occurred before she was an elected official. The allegation against her was when she was acting as acting auditor and controller. Not treasurer. I think there is very solid California case law that talks about the fact that an elected official cannot be removed from office for conduct that occurred prior to their election.”
Andrian’s law firm partner Stephen Gallenson faced down Eyster last year in his defense of former Ukiah Police Sergeant Kevin Murray. Andrian thinks Eyster should recuse himself from the prosecution of Cubbison and let the Attorney General step in, due to the fact that Eyster’s department is subject to financial oversight from Cubbison’s.
The county’s outside counsel, Morin Jacob, told the Board that Cubbison received notice of her suspension on October 17, the day the Board added it to the agenda as an urgency item and voted on it. Cubbison said she received the notice in a letter dated the next day. Haschak had a follow-up question for Jacob.
“With the suspension that we did at the last meeting two weeks ago, is there any problem, from your point of view, about doing that before Ms. Cubbison had a chance to appear before us?” he asked.
Jacob told him, “That is a question that I am happy to respond to in a confidential setting, but I won’t do that in an open setting this afternoon.”
During public comment, Val Muchowski’s remarks were representative of the nine people who spoke after Andrian’s presentation. “Chamise Cubbison was elected,” Muchowski told the Board. “She earned 15,286 votes, (which is) more than the District Attorney. Now, Mendocino Board of Supervisors is taking away our right to have an independent auditor…We have a right to be represented by an elected auditor, and not someone selected by the Board.”