State Attorney General Rob Bonta dismisses a defense bid to disqualify Mendocino County District Attorney David Eyster from prosecuting former county Auditor Chamise Cubbison because of the DA’s widely publicized past conflicts with her office.
The AG’s position, outlined in a 12-page court filing, puts the onus on Mendocino County Superior Judge Keith Faulder to make the decision. Arguments in front of Faulder could occur as early as Tuesday, when Cubbison and a co-defendant are scheduled to enter pleas to a single felony charge of misappropriation of public funds.
Cubbison attorney Chris Andrian, a noted Sonoma County criminal defense lawyer, said he understands the AG’s legal arguments, but he questioned whether the state office understands the ‘toxicity’ surrounding a high profile local case laced with politics.
Andrian said the AG’s office does not grasp the enmity that exists between the two elected Mendocino County officials, let alone “feeling the pulse of the community.”
Eyster within two hours of the AG’s decision formally filed a court declaration outlining what’s behind his planned prosecution of Cubbison, including claims that sheriff’s investigators suggested more possible felony charges against the embattled auditor than previously disclosed.
Eyster also said Cubbison co-defendant Paula June Kennedy, the county’s former payroll manager, and retired Auditor Lloyd Weer have denied participating in an alleged scheme to use an obscure county earnings code to obtain about $68,000 in extra pay for Kennedy. They accuse Cubbison of using the code to get around possible review by the county’s Executive Office, according to the DA’s declaration.
“Cubbison told her (Kennedy) to use the code but to keep the amount of the code authorized payments also inputted into payroll report under $1,000 so it would not get flagged by the CEO’s Office for review of the use of the code or the unauthorized payments,” according to Eyster.
Cubbison and Kennedy are expected to enter not guilty pleas at a hearing scheduled for 9 a.m. Tuesday in front of Judge Faulder. The plea entries have been delayed for two months due to legal wrangling over Eyster’s alleged bias against Cubbison.
The Attorney General’s decision puts the decision on Faulder to decide whether Eyster should be given the green light to proceed with prosecution of Cubbison. The controversy surrounding his filing of criminal charges against a fellow elected official has been further fueled by a sudden decision a few days later by the Board of Supervisors to suspend Cubbison without pay. She was not given the opportunity to publicly defend herself until two weeks after.
Cubbison has denied any criminal conduct, or personally benefiting from the extra county pay made to Kennedy.
As backdrop to the tangled case is history of Cubbison and two auditors before her tangling with DA Eyster since he took office in 2011 about travel expense claims, and his use of asset forfeiture funds for questionable expenses including covering the costs of annual staff parties labeled ‘continuous education training.’
In 2021, Eyster took an unprecedented step of vehemently opposing Cubbison’s appointment as acting auditor before she ran for election a year later and won. The DA also publicly championed a controversial board move to consolidate two elected offices – Auditor/Controller and Treasurer/Tax Collector – into a combined office. Cubbison was chosen by voters to lead the combined offices to the DA’s chagrin, and their differences soon exploded into public view.
The AG’s 12-page decision not to intervene in the Cubbison criminal case declared that the suspended Auditor and her attorney failed “to present evidence of a single prosecutorial decision or action that affected her right to a fair trial.”
The office said it also was denying Cubbison’s request for an evidentiary hearing, contending that she and her attorney are not entitled to “go fishing” for facts or issues that her legal challenges so far have failed to provide.
The AG opinion was filed Tuesday afternoon in Mendocino County Superior Court by Bonta and Geoffrey Lauter, his supervising deputy attorney general. Eyster’s outline of the Cubbison case was filed a few hours later.
Cubbison attorney Chris Andrian said Thursday he is prepared to argue for the DA’s recusal in front of Judge Keith Faulder.
“It’s clear at the local level that the DA’s past conflicts with the Auditor prevents him from fairly prosecuting her for the crime he has alleged,” said Andrian.
Eyster in his written declaration acknowledged that he offered Cubbison and her attorney at her scheduled arraignment Oct. 17 a deal to reduce her case to a misdemeanor in return for her resignation as Auditor.
Because Kennedy did not have an attorney at the time, “We were unable to provide the same professional courtesy and invitation to talk to an attorney acting on her behalf,” said Eyster. Since then, Public Defender Mary LeClair has been appointed to represent Kennedy.
Eyster also confirmed earlier reports that it was CEO Darcie Antle and County Counsel Christian Curtis who triggered the criminal investigation of Cubbison and Kennedy.
Eyster writes that Antle and Curtis called late afternoon Sept. 1, 2022, to discuss with him the possible embezzlement of county funds “by at least Mendocino County’s Payroll Manager Paula June Kennedy.”
Eyster said Antle and Curtis had met with Cubbison and Kennedy earlier in the day, and believed Kennedy may have committed one or more crimes. The two top county officials also told him they were “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.”
Antle and Curtis were advised by Eyster to contact Sheriff Matt Kendall, according to the DA’s filed statement. Eyster said he learned that Kendall, Capt. Greg Van Patten, and Lt. Andrew Porter the next day were brief during a meeting with Antle, Curtis, and deputy CEO Cherie Johnson.
Lt. Porter was assigned to initiate a criminal investigation “of the allegations raised by the county administrators,” according to the DA statement to the court.
Eyster said when the investigative report was submitted to his office, it concluded three felony charges were possible.
“From my review of the crime reports provided by the sheriff’s investigators the Payroll Manager was inserting an obscure earnings code on the payroll report that then allowed her to input a payment amount each and every pay period starting in 2019 to 2022 to collect monies not authorized by her position, Human Resources, or the Board of Supervisors,” according to Eyster’s court declaration.
Eyster said Kennedy during questioning by investigator Porter said she knew the extra pay she received during the Covid pandemic was not board authorized or “otherwise legal, but she believed that Auditor (Cubbison) must have figured out this as a novel way to get the Payroll Manager paid more money.”
Kennedy claimed to investigators that she made repeated attempts to have Cubbison “put her authorization of this scheme into writing.” Cubbison, however, ignored her requests or told Kennedy she was too busy and would get around to it at some later point that never came, according to the DA statement.
Cubbison has said the extra pay stemmed from an agreement between Kennedy and now retired Auditor Lloyd Weer, but Eyster’s declaration contends that Kennedy denied to investigators that she ever discussed the pay with the former auditor. Weer also told investigators that he never discussed the extra pay scheme with either Kennedy or Cubbison.
Eyster said Cubbison, Kennedy and Weer were all in agreement that the use of obscure code was ‘improper, and the extra monies paid out to the Payroll Manager were unauthorized as required by law.”
Eyster said his own DA investigators did “some follow-up investigation work in early or mid-2023 to supplement the investigation undertaken by the Sheriff,” apparently his rationale for taking more than a year to decide whether to file criminal charges against Cubbison who did not personally benefit from the payments.
Eyster defended his criminal filing against Cubbison.
“After reviewing all the reports, including recorded witness statements, and participating in a team charging meeting with my staff, I ultimately decided there was sufficient information developed in the overall investigation to partially accept the Sheriff’s charging recommendation” of filing a felony misappropriation of public funds against both Kennedy and Cubbison.
So Eyster can go digging for ways that Cubbison may have used codes to get an employee paid with as little bureaucracy as possible, but Cubbison’s team cannot go digging for ways Eyster may have used codes to pay for actual not-work done, actual embezzlement. And now the state won’t intervene?
Eyster!!! Clearly using his “authority” to smash a gnat with a shotgun. What a production. He’s probably doing this to her as one last “hey fellas, hold my drink and scratch my balls and watch me terrorize this annoying woman for fun ‘for I retire. Yee Haw I tell you whut”.
What an actual asshole.
Somebody didn’t love Eyster enough as a child. No other explanation for why a man of his magnitude would seek public attention in such an all consuming and sick way. Clearly a narc.
What if this was/is just good old fashion embezzlement of public funds? Should she really be still sitting as this county’s Auditor? Regardless of Eyster’s misgivings.
What relationship does Judge Keith Faulder and DA Eyster have? They probably rub elbows after work at the same social events and Faulder will just go along with the Eyster circus
Surprise surprise, another ill-informed person making a Spurious claim they can’t backup with even the slightest shred of evidence (circumstantial or otherwise).
Go do some “learning” about the standards of evidence.
Eyster’s charges don’t pass the smell test.
Why do I say that? He says from 2019 to 2022 these payments were made.
Lloyd Weer retired between 2021 and 2022. He asked the BOS to name Cubbison interim in his position. This is the meeting where Eyster voices his complaints of her. Look it up, the BOS meetings have transcripts.
So how does he (Weer) deny knowledge of these payments?
Kennedy was put on Administrative Leave for almost a year. Then terminated. So she never raised an issue or sought legal counsel for wrongful termination, especially if she asked for this in writing and was only doing what her superiors told her to do.
If Eyster is doing this impartially then all three should be charged.