By TIFFANY REVELLE The Daily Journal
Updated: 01/05/2011 11:59:05 PM PST
A small claims case against 4th District Supervisor Kendall Smith regarding $3,087 she was overpaid for travel costs wasn't resolved Wednesday night in Room A of the Mendocino County Superior Court, but it doesn't look good for plaintiff Bruce Anderson.
Judge John Behnke said he would either deem that he didn't have jurisdiction to order Smith to repay the amount, saying the criteria for a "whistle-blower" lawsuit weren't met, or he would deny Anderson's claim.
"If there is some misuse of public funds, the DA ... is supposed to investigate and exercise their discretion. If there's a whistle-blower type circumstance, that is when there are facts that aren't known -- they're not in the public domain -- and a whistle-blower comes forward with that information; then a private person can put itself in place of the county or the governmental entity and proceed," Behnke said. "I really don't see that as having happened here, so I sincerely doubt that I have jurisdiction."
He called the case a "false claims case" several times, and said under state law governing false claims, the court doesn't have jurisdiction over an elected official.
Anderson, who is the publisher of the Anderson Valley Advertiser, brought the taxpayer lawsuit against Smith in hopes that the court would order her to pay $3,087 back to the county that she was overpaid in travel reimbursement claims.
"In 2006, the grand jury found that Supervisor Smith billed the county for travel untraveled.
Three successive grand juries found the same thing," Anderson said during his opening comments.
He referred to travel reimbursement Smith claimed for what the county's civil grand jury called "fictitious commute miles" between her Fort Bragg home and Ukiah between January 2005 and November 2006, when she was staying with friends or renting a room in Ukiah and not actually traveling.
He told the court Smith said in 2008 that "she would be open to negotiation to repay the money."
Anderson recounted the grand jury's findings and events in 2010, including former Mendocino County District Attorney Meredith Lintott ordering county Auditor-Controller Meredith Ford to dock Smith's pay for the amount.
Ford, who calculated the amount Smith was overpaid at the grand jury's behest, was included in Anderson's claim.
"She should have recovered the money when she was first requested to in 2010," Anderson argued.
Behnke said Ford wasn't a "proper defendant" for a false claim, which he said would allege a government official took money under false pretenses.
Behnke said Ford acted within the scope of her employment with the county when she asked for a legal opinion instead of complying with Lintott's order. County Counsel Jeanine Nadel claimed a conflict of interest and forwarded Ford's request to the Sonoma County Counsel's Office. That office issued a Sept. 19 opinion that Lintott and Ford didn't have the authority to dock Smith's pay without a court order.
Smith's response to grand juries previously was that the county's travel reimbursement policy at the time was confusing, and that she claimed the travel expenses based on a "per-diem" calculation she thought was acceptable because two other supervisors used it.
Smith submitted a written response and read it aloud to the court Wednesday night. In the response, Smith said she based her claims on a travel reimbursement established in 2002 that allowed her to claim a mileage rate instead of being compensated for any overnight lodging.
"The policy states, Supervisors with meetings back-to-back may elect to stay overnight rather than drive back and forth and will be reimbursed not to exceed the mileage rate that would have been charged for travel,'" Smith read.
She said when a new policy was established in 2007, "the reimbursement filing was identical, as the amount claimed was to be the mileage rate in both scenarios."
Smith also said the grand jury's findings "do not have the force of law and should not be taken as fact," and noted Anderson's claim came six years after the reimbursements in question.
Behnke asked Anderson if the $3,087 in question was claimed before 2007, and Anderson said the grand jury calculated that amount in 2006.
"Four grand juries have gone over the same fuzzy claims, in which Supervisor Smith blames policy, grand jury system -- everybody but herself -- for basically billing the taxpayers for travel that the grand jury ... established she did not travel," he said.
Behnke said the district attorney can prosecute the matter criminally or civilly, and said he didn't know why Lintott hadn't done so. In prior responses, Lintott held there was no evidence that Smith meant to defraud the county.
After Behnke took the matter under advisement, Anderson said outside the courtroom that he plans to wait for the judge's written ruling, and may bring the matter to newly elected District Attorney C. David Eyster.
Tiffany Revelle can be reached at udjtr@pacific.net, or at 468-3523.
http://www.ukiahdailyjournal.com/ci_17022950?source=most_viewed
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