Fourth District Supervisor Kendall Smith's travel overpayments can't be deducted from her payroll checks without a court order, according to a legal opinion from the Sonoma County Counsel's Office.
The Mendocino County grand jury questioned the overpayments again this year after Smith called the since-changed county policy on travel reimbursement confusing and denied she was overpaid for business travel between Fort Bragg and Ukiah in responses to two prior grand jury reports.
"The gist is that I do not have the legal authority to withhold payroll from someone's payroll check without a judgment of some kind," Mendocino County Auditor-Controller Meredith Ford said of the Sonoma County legal opinion.
Ford asked for a legal opinion after District Attorney Meredith Lintott ordered her to deduct the $3,087 Ford's office determined Smith was overpaid for travel reimbursements between January 2005 and November 2006.
Smith allegedly claimed reimbursement for business trips between her Fort Bragg home and Ukiah during that time, "when there was no actual travel and when her cost of overnight lodging was little or nothing because she either stayed with friends or in a room which she rented for $100 per month (in Ukiah)," according to a letter Lintott wrote in 2008 to Smith's former attorney in the matter.
Proposing a way to recover the money without going to court, Lintott ordered Ford Aug. 6 to dock the amount from Smith's pay. Ford said she wasn't sure she had the authority to do that and asked Mendocino County Counsel Jeanine Nadel for an opinion.
Citing a conflict of interest, Nadel forwarded the request to Sonoma County.
The legal opinion, penned by Sonoma Chief Deputy County Counsel Sheryl L. Bratton, says neither the current Mendocino County travel reimbursement policy nor the state law Lintott cites as authority to dock Smith's pay allow the "unilateral imposition of a penalty through the offsetting of wages that are otherwise due to a board member.
"As a result, it would be necessary to initiate some type of administrative proceeding or hearing (e.g. court order) prior to taking such action."
Bratton writes that she also found no authority for Ford to "unilaterally make payroll deductions," or for Lintott to order Ford to do so without Smith's permission.
Lintott said the state law section she cited as authority, Assembly Bill 1234, became law in January 2006, when Smith was claiming the travel reimbursements based on a "per diem" calculation.
The law was supposed to "prevent abuse of travel policies," according to Lintott.
There have been no lawsuits filed and no case judgments to interpret the law and guide its application since then, according to Lintott, making ambiguous the definition and means of collecting "restitution" - cited as a remedy for falsifying expense reports under the law.
Lintott maintains there is no evidence that Smith meant to defraud the county, but wrote in a Thursday press statement, "Smith's conduct occurred at the same time the legislature was working to prevent such abuses."
Lintott also notes former District Attorney Norm Vroman knew about the overpayments but took no action.
She said the grand jury can sue Smith for the money, as can the county, but "this is not something we can take to court and win."
Lintott added, "Clearly this is an outrage to citizens because there is a sense that she (Smith) took advantage of a policy that was not written well."
Tiffany Revelle can be reached at udjtr@pacific.net, or at 468-3523.
http://www.ukiahdailyjournal.com/ci_16116809
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