The Attorney General has declined a request to recuse District Attorney David Eyster from his high-profile prosecution of ousted Auditor Controller Treasurer Tax Collector Chamise Cubbison. Judge Keith Faulder is scheduled to hear the motion this week.
Eyster filed a declaration Friday with the AG’s office and the Mendocino County Superior Court, where he summarized some key findings of the investigation, including claims that Cubbison’s recollections about an obscure payroll code changed over time.
The sheriff’s office began the investigation into Cubbison and her co-defendant, payroll manager Paula June Kennedy, in September of last year. That was shortly after a meeting where CEO Darcie Antle and County Counsel Christian Curtis began to suspect Kennedy of embezzlement. According to Eyster, they were also “suspicious of Ms. Cubbison’s demeanor at the meeting and at least some of her answers to questions posed to her about what she knew and when.”
Eyster wrote that between 2019 and 2022, Kennedy “was inserting an obscure earnings code on the payroll report that then allowed her to input a payment amount each and every pay period,” to collect unauthorized monies. Eyster claims that Kennedy knew the payments were illegal, and that Cubbison told her to keep the code-authorized amounts under $1,000, so they wouldn’t be flagged by the CEO’s office. According to Eyster, “When the Payroll Manager (Kennedy) made repeated attempts over multiple years to have Cubbison put her authorization of this scheme into writing, the Payroll Manager said that Cubbison would either ignore her requests or tell the Payroll Manager she was too busy and would get around to it at some later point that never came.”
Eyster laid out three versions of Cubbison’s level of knowledge about the code: He wrote that initially, she told a sheriff’s investigator that she didn’t know anything about it until the meeting with Antle and Curtis on September first of last year. Witnesses told the same investigator that Cubbison admitted, at that meeting, that she did know about the use of the code. Later, she allegedly claimed to have “a very faint memory of a (different) meeting” with former Auditor Controller Lloyd Weer and Kennedy about the matter, which the other two denied. Eyster concluded that Weer, Cubbison and Kennedy agreed on one thing during the course of the investigation: “that the use of the code on the payroll report was improper and the extra monies paid out to the Payroll Manager were unauthorized as required by law.”
The sheriff recommended that the women be charged with three felonies: embezzlement, misappropriation of public funds, and conspiracy. Eyster chose to prosecute them for one felony: misappropriation of $68,000, allegedly paid to Kennedy improperly between 2019 and 2022.
Cubbison’s attorney, Chris Andrian, told the court last month he was asking the Attorney General to recuse the DA’s office, on the grounds of a conflict of interest. In remarks after the brief court appearance, Andrian told us that, “My ethics and my obligation to Ms. Cubbison, based on the background information I learned about a pre-existing adversarial relationship with her and Mr. Eyster, forced me to have to file this motion…There is a potential conflict of interest in the sense that Mr. Eyster has been public in his opposition to her. He’s gone before the Board of Supervisors, saying that he didn’t think she was qualified to do the job. She was challenging him on some of his claims.”
Last Tuesday, the AG filed a 14-page opinion in opposition to the motion, stating that the appearance of a conflict of interest is not the legal standard. He decided that Cubbison had failed to prove that the DA would be unable to prosecute her fairly. She also failed to prove that the conflict between their two offices “is so grave it is unlikely she will receive fair treatment.” Defendants are required to prove both elements in order to justify recusal under the penal code. The AG cited case law stating that, “Recusal of an entire district attorney’s office is an extreme step,” and that recusals in general are “disfavored because they are often used as just another trial tactic, brought to delay, shop for a perceived less aggressive prosecutor, or to unfairly tarnish the name and reputation of an adversary.”
He dismissed the claim that Cubbison’s case is similar to another case (People vs. Conner), where a district attorney’s office was recused from prosecuting someone who had tried to murder a deputy district attorney. “Unlike Conner,” the opinion states, “this case does not involve a prosecutor as the victim or witness to a crime. Rather, the claimed conflict involves a disagreement about reimbursement claims. That is a far cry from the emotional involvement stemming from a coworker and colleague being the victim of a violent crime prosecuted by the district attorney.”
When the Board of Supervisors considered appointing Cubbison to serve out the remainder of former Auditor Controller Lloyd Weer’s term in 2021, Eyster submitted detailed documents about Cubbison’s rejection of travel reimbursement claims his office had submitted without authorization forms. And in the course of a three-months’ correspondence about using asset forfeiture funds to pay for a dinner at The Broiler, a steakhouse in Redwood Valley, Cubbison insisted that the public money could not be used to buy dinner for people who were not county employees. The AG decided that, “The existence of the disagreement between defendant and DA Eyster regarding the reimbursement claims is not in dispute;” but that Cubbison failed “to demonstrate a nexus between that prior disagreement and a likelihood of future unfair treatment.”
And the AG apparently does not share Andrian’s concerns about public perception of the case, including the anticipated difficulties of jury selection, writing, “It is well established that failing ‘the smell test’ is not enough to deny parties representation by the attorney of their choice.”