Missing emails not enough to halt criminal case against Mendocino auditor, argues prosecutor

An outside prosecutor argues that a chain of missing official county emails in a chaotic criminal case involving Mendocino County’s elected Auditor, and its former top payroll manager are not reason enough to dismiss felony charges. 

Traci Carrillo, who was hired by Mendocino County District Attorney David Eyster to press the case that has dragged on for more than a year, said Cubbison’s defense has “failed to demonstrate that the missing emails were of significant materiality.”

Even if the defense ultimately could demonstrate the missing emails – supposedly the result of a failed county archival system discovered while the felony case was being investigated – are critical to the case, “there is no evidence of bad faith” which is required under state law to show denial of due process, according to Carrillo.

Superior Court Judge Ann Moorman on Nov. 13 will hear arguments in the defense bid to dismiss a high-profile case laced with local politics. 

DA Eyster, who instigated the criminal case against a fellow elected official whom he had quarreled with over his own office’s expenses, initially refused to recuse himself from prosecution in October 2023 but a few months later he hired Carrillo, a former Sonoma County prosecutor, to pursue the criminal case at an hourly rate of $400 per hour, and a $10,000 retainer.

Carrillo’s response filed Wednesday to defense attorney Chris Andrian’s bid in early October to have the case tossed was not unexpected, but it, like Andrian’s early motion, provided a deeper look into a case which is proving far costlier to prosecute than the $68,106 in extra pay that former county Payroll Manager Paula June Kennedy received over a three-year period during the COVID pandemic.

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Carrillo’s motion confirms intense disagreements over what happened among the county’s three top Auditor Office’s administrators: former Auditor Lloyd Weer, who was still in office when the extra payments began in 2019, Cubbison, his then assistant who was later elected to be his replacement by voters, and Kennedy, a longtime payroll manager.

Andrian in his motion earlier this month to dismiss labeled it a tangled case of “he said, she said, they said.”

The prosecutor’s motion filed in response Wednesday discloses that Cubbison and Kennedy were veteran county auditor employees whose relationship had ruptured. Kennedy, a salaried employee, threatened to quit in 2022 because the County Executive Office was refusing to compensate her for 390 hours of extra work during the 2.5 years she worked from home during the pandemic, when the Auditor’s Office was largely closed to the public. 

Carrillo’s argument confirms that it was Cubbison who triggered the criminal investigation after she alerted the County Counsel’s Office to Kennedy’s threats of a possible a lawsuit over her alleged unpaid hours. 

Carrillo’s motion disclosed that a search of Kennedy’s phone revealed text messages between her and an individual she was dating at the time that revealed the level of acrimony that had developed between Kennedy and Cubbison by then.
Referring to Cubbison, Kennedy wrote, “She’s the one who told me to issue it (the extra pay code) and refused multiple times to put that in writing.”

“Lying, back-stabbing bitch didn’t confess that she approved it. So now, it’s my word against hers,” according to Carrillo’s quote from the Kennedy text.

Carrillo continued the Kennedy quote: “so unnecessary. I would have never issued that pay without her approval. I would have quit three years ago.”

Investigative reports, however, show Cubbison did intervene on Kennedy’s behalf to top county officials to no avail. Cubbison and Weer both knew that authorization of any extra pay depended on approval not from either one of them but from the County Executive Office and the Board of Supervisors, investigators found.

At issue now in the criminal case is whether Kennedy had an alleged “side agreement” with either Weer or Cubbison to use the obscure pay code. Kennedy so far has not produced any document other than timecards with the notations “per Lloyd and Chamise,” according to Carrillo’s motion.

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Kennedy, after being placed on administrative leave by Cubbison following disclosure of the extra pay, insisted to investigators that Cubbison told her Weer had approved the payments. 

Carrillo said Kennedy claimed she never spoke directly with Weer when he was still Auditor about the extra pay.

However, Carrillo’s motion does not address Andrian’s earlier allegation that former District Attorney Chief Investigator Kevin Bailey learned there in fact had been a personal discussion between Kennedy and Weer about ways to get her compensated.

Carrillo said Thursday those related details will be “flushed out” during the scheduled court hearing Nov. 13. 

Andrian expected Carrillo to oppose his bid on behalf of Cubbison and said the serious issues relating to the county’s acknowledgement of potentially thousands of missing emails, and Weer’s role in the extra pay, remain. 

“In this case, three individuals pointed the finger at each other regarding how or whether Ms. Kennedy received authorization to use the additional pay code,” Andrian’s motion to dismiss contended. He said the missing emails might have shown who authorized Kennedy’s use of an obscure county pay code.

No matter, prosecutor Carrillo argues in her opposition to dismissal.
“Defendant is unable to show that anyone from the county acted in bad faith,” said Carrillo.

Carrillo acknowledged there are “some” missing emails among seven users including Weer, Cubbison and Kennedy between 2013 and 2020, but she claimed they were “well outside the relevancy of this case.”

“Accordingly, even if the defendant could show that some of the missing emails contained potentially useful evidence that was destroyed, defendant has failed to demonstrate the bad faith element as required,” according to Carrillo.

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