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Le Templar: What I Know ~

Archive for October, 2009

Federal judge to ‘birthers’: Go away

October 29th, 2009, 3:19 pm by Le Templar

The Tribune has receive a sizable number of letters to the editor in the past few months about the claims that President Barack Obama isn’t a natural-born citizen as required by the Constitution (Art. II, Sect. 1). So they claim he never was eligible to be elected or sworn in president. A number of federal lawsuits have been filed around the country on issue, with the arguments getting more convoluted with the passage of time. But every one of the lawsuits have been dismissed, and the U.S. Supreme Court has refused to consider any of them.

Lately, the most virulent believers of Obama’s ineligibility, often referred to as “birthers” by critics (such as myself), have been pining on their hopes on U.S. District Judge David O. Carter of California. Carter didn’t immediately dismiss the lawsuit like other judges. He heard arguments and considered evidence, so the birthers thought they finally would get their day in court.

Nope. The judge ended the case today. Carter’s speaks to why every lawsuit has been a waste of time and money. The Constitution spells out how a sitting president can be removed from office, and the courts have no authority to do so, Carter says. If Obama somehow wasn’t born in Hawaii or if he somehow gave up his U.S. citizenship as a child, it would be Congress’ task to impeach him. However, even staunch conservatives such as Rep. Trent Franks, R-Ariz., reject the birthers’ position in light of the various evidence confirming Obama’s natural-born citizenship.

Public gains new access to government electronic records

October 29th, 2009, 2:26 pm by Le Templar

Metadata (met-uh day-ta): Data about data. Metadata describes how and when and by whom a particular set of data was collected, and how the data is formatted. Metadata is essential for understanding information stored in data warehouses and has become increasingly important in XML-based Web applications. (www.webopedia.com)

The Arizona Supreme Court has blazed new ground today for government transparency and access to public records in a case about information that’s created as part of electronic records but often is not seen when those records are printed out.

In Lake v. the city of Phoenix, the Supreme Court unanimously ruled that metadata should be treated just like the underlying document and is covered by Arizona’s open records law. This means government agencies won’t be able to withhold key details about an electronic file, such as when it was created, who had access to the record and if there’s any hidden information used by government officials that “disappears” when you click the print button.

The lawsuit is about Phoenix police officer David Lake, who claims he was wrongly demoted by the city. Among the evidence produced in the case are some personnel evaluations that reflect poorly on Lake’s performance. Lake  suspects the evaluations were written after his demotion and were falsely backdated.

Since the evaluations were written on city computers using a standard word-processing program, Lake’s lawyers demanded to see the electronic originals including the metadata that would show when the documents were first created, if they were ever changed, and who might have edited them over time. You can type any date you want at the top of a letter, and you can go back and edit that letter weeks or months later to completely change its message. But only a few computer experts can hack into word-processing programs and change the metadata to hide their tracks.

Phoenix lawyers denied Lake’s request, and argued in court that the open records law only applied to parts of a document typed in by a city official that could be printed off. Since metadata often is automatically created by the software outside of the user’s control, it can’t be considered a public record, the city also argued.

A trial judge and the Arizona Court of Appeals agreed with Phoenix’s position. That’s when several media/freedom of information groups took an interest in the case, including the First Amendment Coalition of Arizona. Full disclosure: I’m on the coalition’s board of directors.

Lake and Phoenix were arguing over several issues in different stages of their appeals, and the First Amendment Coalition worried that the fundamental, open government concern involving metadata wouldn’t receive the proper attention before the Supreme Court. So the coalition’s lawyer, Dan Barr, filed a “friend of the court” brief to explain how metadata works and why that information shouldn’t be viewed differently from other parts of a public document.

Part of that presentation came from Steve Doig, a journalism professor at Arizona State University who previously participated in Pulitzer Prize winning investigations with the Miami Herald. Doig explained in writing for the Supreme Court how there are times when you can’t even make sense of an electronic file (especially if it’s created in a spreadsheet like Excel) unless you have the corresponding metadata.

The Supreme Court agreed with the arguments from Lake and the media groups. The court even recognized that governments can avoid the time-consuming hassle of isolating and printing off metadata by simply turning over the original electronic file (usually referred as its “native format”). That’s what most people seeking public records from computers want these days anyway.

But a lot of Arizona governments refuse to release the electronic version of records, claiming state law doesn’t require them to do so. Typically, governments insist on printouts to discourage public record seekers or to limit what they will get to review.

This Supreme Court decision should provide a new incentive for governments to release complete public records in a manner consistent with 21st century technology.

County’s latest tussle with Thomas could backfire

October 28th, 2009, 2:13 pm by Le Templar
Maricopa County Attorney Andrew Thomas (left) and County Manager David R. Smith

Maricopa County Attorney Andrew Thomas (left) and County Manager David R. Smith

We got some unusual insight this week into just how nasty the fighting has become within the upper echelons of Maricopa County government. The county’s top administrator now is hinting that some of the county’s top attorneys have violated a basic ethical standard of the legal profession — always protect the client’s confidentiality. In turn, those attorneys are now risking official sanction to a shine a light on the questioning of their ethics, which they also see as a fundamental attack on their right to free speech.

Two central players in this week’s escalation of the courthouse power struggle are County Attorney Andrew Thomas and County Manager David Smith. As an appointed official who answers to the Board of Supervisors, Smith isn’t as well-known as Thomas. But Smith wields far-reaching influence with his day-to-day control of the county’s $2 billion budget.

As outlined in state law, Thomas’ office normally serves as the “law firm” for the county. The county attorney provides legal advise to the Board of Supervisors and the county manager, and represents the county in court whenever it is sued. But business has been anything but normal ever since Thomas obtained a criminal indictment of one of those supervisors, Don Stapley.

A short time later, the Board of Supervisors said it couldn’t trust Thomas to protect its interests first. So the board essentially fired Thomas as the county’s legal adviser and created it’s own “law firm” called the Office of General Litigation Services. Thomas has tried to stop the board from stripping this authority (his office still prosecutes criminals), but so far the courts have sided with the supervisors.

Despite the current separation, Thomas and his staff had an attorney-client relationship with David Smith and other county administrators. The guidelines that govern this relationship is the first rule of ethics for all lawyers adopted by the state Supreme Court. One key point of that rule: a lawyer almost never can unilaterally decide to talk about private conversations with a client, even after the lawyer and client no longer work together.

On Monday, Smith invoked that ethics rule when he sent a letter to Thomas, six of his top assistants and the county attorney’s public information officer. As Tribune writer Gary Grado reported, Smith asked if Thomas and the others ever shared any confidential information about county business by email with several local media outlets including the Tribune. Smith also wanted to know if the lawyers had ever written about county officials under their own names or anonymously for a political blog called Sonoran Alliance and for two other conservative groups.

Smith, a lawyer himself, isn’t explaining what prompted him to send the letter. But his written questions strongly imply he already has some evidence that he believes point to an ethical breach by Thomas and his top assistants. The evidence apparently wasn’t enough to file a formal complaint with the Arizona State Bar. So Smith must have decided to deliberately provoke Thomas and see what happened.

The response was loud and furious. Barnett Lotstein, a special assistant to Thomas who often speaks publicly for the office, also received Smith’s letter. Lotstein said the county manager is trying to intimidate him from speaking out in defense of the county attorney.

“David Smith isn’t a king,” Lotstein told me. “Perhaps he has forgotten that. Maybe it’s time someone remind him.”

Thomas’ PIO Michael Scerbo forwarded Smith’s letter to Valley journalists, a deliberate move because Scerbo was the only non-attorney to receive the demand for information. Scerbo said he finds the letter alarming because his whole job is to communicate with the media. In theory, Smith could disrupt the county attorney’s ability to speak freely with the public if Thomas has to worry that even if his spokesperson’s conversations are going to be monitored by a powerful critic.

However, Scerbo’s employment by the county attorney means he’s also not supposed to disclose confidential facts of county business. Cari Gerchick, a spokeswoman for the Board of Supervisors’ own “law firm,” drew an analogy to a doctor’s office, where everyone including the nurses and filing clerks legally can’t disclose information about patients, even though those employees aren’t physicians.

Gerchick said Scerbo’s release of Smith’s letter actually was a violation of the ethics rules, because Smith made it clear he was asking for information under the protection of attorney-client confidentiality.

But perhaps the county attorney learned something about the power of transparency when two executives from Phoenix New Times were arrested after they revealed a secret subpoena from a county special prosecutor seeking information about everyone who had visited that publication’s web site. Public backlash to the outrageous overreach of that subpoena prompted Thomas to drop the arrest charges and to cancel the special prosecutor’s investigation.

Any legitimate doubts about Thomas’ legal ethics would have serious implications, as he is likely to campaign for state attorney general next year. But if Smith and the Board of Supervisors want to go after Thomas or his assistants, they better have something more substantial than the public disclosure of a demand letter.

Arizona’s congressional delegation supports Luke AFB

October 23rd, 2009, 3:08 pm by Le Templar

lukeletterweb

An issue that always has struck me as odd about Arizona’s congressional delegation is just how partisan it has become. I have repeatedly asked  lawmakers over the past five years, “How often do the Democrats and Republicans come together to discuss and then act on issues of common concern to Arizonans.” Their answer? Almost never.

That wasn’t always the case. Arizona’s political giants of the past used to be proud of their ability to set aside party politics and work together. This was part of the legacy of Carl Hayden, Ernest McFarland, Barry Goldwater, and Mo and Stewart Udall.

I’m not saying party politics are evil. Political parties help to define the choices and possible policy directions for voters. But there are moments and issues that should transcend, or stand outside, of partisanship. Without a doubt, the Central Arizona Project never would have been built if the state had relied on only half (or less) of its congressional delegation to get the job done.

Well, Arizona’s current crop of federal lawmakers have finally found at least one topic where everyone can pull in the same direction. All 10 of Arizona’s senators and representatives have signed a joint letter urging the Air Force to select Luke Air Force Base in the West Valley as the future training site for pilots of the F-35 Lightning fighter jet. You can read the full letter by clicking on the image above. It was provided by the office of Rep. Trent Franks.

Currently, Luke is the final stop for all Air Force pilots who learn to defend the skies on the wings of the F-16. So, supporters of Luke believe the air base should keep that role when the Fighting Falcon is replaced by the F-35.

But the push to bring the Lightning to Luke isn’t universally popular. El Mirage has been challenging the selection of Luke because of potential noise pollution. And state efforts to keep development of surrounding property from limiting the air base’s viability has created huge problems for landowners who can’t build or sale their land.

But the issue has brought together Arizona’s congressional delegation in favor of F-35 training at Luke. I wonder if this is any sign of more bi-partisan efforts in future?

Pearce won’t be next DPS director

October 22nd, 2009, 10:34 am by Le Templar

The Phoenix Business Journal created some buzz yesterday with an online story that Sen. Russell Pearce, R-Mesa, is being considered by Gov. Jan Brewer to be the next director of the state Department of Public Safety. Pearce told KFYI radio talk show host J.D. Hayworth that he hadn’t spoken with Brewer about an appointment, but he would “seriously consider it.”

Pearce technically would be qualified to run DPS, considering his stellar career as a sheriff’s deputy and as the former director of the Motor Vehicle Division. But I’m surprised Pearce, as a former justice of the peace and an experienced lawmaker, failed to remember that he’s legally barred from the appointment.

The Arizona Constitution — Article 4, Part 2, Section 5 — says no lawmaker can take another public office until his or her current term expires. The only exceptions are for school teachers and school board members. The specific wording means the prohibition still applies even if a lawmaker resigns from office before trying to take another government job.

So, Pearce couldn’t become DPS director until January 2011 at the earliest. The six-year term of the current director, Roger Vanderpool, expires in three months. Brewer isn’t going to wait a year to bring Pearce on board, even if she presumed she would win the November 2010 election.

Just for confirmation, the Arizona Guardian reached a similar conclusion this morning in its “Guardian Angel” column.

Brewer replaces top assistant to ease tensions

October 20th, 2009, 11:33 am by Le Templar
Kevin Tyne, left, the governor's chief of staff will leave the office in three weeks after growing criticism of his management of her administration/Capitol Media Serices file photo.

Kevin Tyne, right, the governor's chief of staff will leave the office in three weeks after intense, behind-the-scenes criticism of his management style/Capitol Media Serices file photo.

Gov. Jan Brewer has finally given in to the growing political pressure to replace her closest adviser. Chief of staff Kevin Tyne will leave the state Capitol in three weeks to take a post with the Republican Governors Administration, Brewer announced on her Facebook page this morning. (Various media outlets starting blogging and tweeting about Tyne’s pending departure an hour earlier.) His replacement will be deputy chief of staff Eileen Klein. Brewer’s announcement came a few hours before Brewer is scheduled to meet with  House Speaker Kirk Adams, R-Mesa, and Senate President Bob Burns, R-Peoria, to plan a possible November special session to address a $1.5 billion budget deficit.

Tyne has been at Brewer’s side for years, going back to her days as a Maricopa County supervisor. He was quite as effective as her deputy when Brewer was secretary of state. So he was the natural choice to take on the day-to-day chores of managing Brewer’s administration when she became governor in January.

But Tyne has been a focus of lots of criticism behind-the-scenes this year. As the Arizona Guardian recently reported (story is subscription-only), Tyne has received much of the blame for Brewer’s challenges in dealing with a Legislature controlled by her own party. Lawmakers claimed they were frequently blindsided by Brewer’s positions and maneuvering on budget issues.

As I read the complaints (and I have heard my share from Capitol sources), Tyne became a target partly because Brewer was once an accomplished state senator. Many political insiders can’t imagine she has forgotten that much since her time in the legislative halls. So if Brewer’s administration can’t get things done, it must be Tyne’s fault as her right hand, so the thinking seems to go. That’s point of view gets a boost with Klein moving up. She is a former chief of staff for the state House who has her own reputation for being tough but is among the most knowledgeable anywhere about the details of the state budget.

But Brewer is loyal to her friends and allies. Until today, she gave every indication she was going to keep Tyne despite the private efforts to push him out. It’s possible that Tyne is being a good soldier and he volunteered to step aside to help Brewer repair her relations with Republican lawmakers.

There’s also been some speculation this is a sign that Brewer will run for election next year. I wouldn’t go that far. Brewer has done almost nothing to prepare for a tough statewide primary, and she’s quickly running out of time to get a campaign organization off the ground.

UPDATE: Jan Brewer’s longtime public relations firm and campaign managers at HighGround of Phoenix have issued a statement coming to Kevin Tyne’s defense. Key quote: “It shouldn’t be a surprise today that politicos will attempt to assign blame to Kevin Tyne, but the reality is that Kevin was an equal to any Chief of Staff who has served any previous Arizona Governor.”

Cox, bloggers team up for state budget forum

October 19th, 2009, 11:09 am by Le Templar

Cox Communications will offer a different take on state politics Tuesday by combining the immediacy and authority of the Internet with the personal connection of television. Cox is inviting Arizonans to watch two prominent political bloggers debate the state budget, and to offer their own thoughts at the same time.

The blogger forum/public chat is an outgrowth of InnovateAZ, a year-old page on Facebook that’s intended to let anyone discuss the future of government policies affecting the Internet and related technologies  in Arizona, in Washington, and around the world. Of course, Cox has a strong interest in the topic as a leading provider of Internet access here in the Valley. (Full disclosure: I use Cox as my home Internet-cable provider).

Greg Ensell, Cox’s manager of government relations and public affairs, said his company wanted to harness some of the energy that emerges during discussions at InnovateAZ and invest it in other community issues.

So Cox will experiment with livestreaming a blogger forum on the Web.

The forum itself should be lively, as it will feature two of the Valley’s most active political bloggers: liberal Donna Gratehouse from The Democratic Diva and Shane Wikfors of the Sonoran Alliance (a conservative/Republican site).

Today, Cox is inviting people to record on video a question for Gratehouse and Wikfors (and post it at the Facebook page), or to submit a written question. The 30-minute forum will be taped during the day Tuesday.

Then, at 7 p.m. Tuesday, Cox will replay the forum here. Next to the replay screen will be a chat board where viewers can react to what they are watching. Ensell said Cox also was seeking to arrange for Gratehouse and/or Wikfors to join the chat live. Maybe they will toss in some of the arguments they didn’t get to make earlier in the day.

For the political junkies among us who make “Horizon” and “Sunday Square off” two of the better watched local news shows, this is a chance to join directly in the debate instead of just screaming at your television screen.

CORRECTION: An earlier version of this post incorrectly said the blogger forum would be broadcast on cable television. The forum will be webcast only.

County supervisor caught violating federal rules, report says

October 14th, 2009, 10:57 am by Le Templar
Mark Flatten/Tribune file

Mark Flatten/Tribune file

If Phoenix Mayor Phil Gordon and Maricopa County Supervisor Mary Rose Wilcox think they can just ignore the new investigative writer for the Goldwater Institute, then they have forgotten who Mark Flatten is. Especially Wilcox, as Flatten seems to clearly prove she used her political connections to land and keep a lucrative restaurant contract at Phoenix Sky Harbor International Airport, and she violated federal rules while doing so.

Unlike Gordon and Wilcox, I haven’t forgotten Flatten. He was one of the best investigative journalists in the state during his years with the East Valley Tribune, and possibly one of Arizona’s best ever. He’s methodical, relentless and has amazing organizational skills. And he never allows an investigative report to be published until he’s sure he has covered all of the angles.

But given the uncertain future of the Tribune, Flatten decided this summer to strike out on a new venture. In an evolution from the traditional model of political think tanks, the Goldwater Institute hired Flatten to continue pursuing his craft which includes following the ethical tenets of journalism. But many Arizona journalists have wondered if Flatten really would have the freedom to objectively pursue a story to its logical conclusion, or would the Goldwater Institute subtly (or overtly) coerce Flatten’s writing to fit the institute’s libertarian outlook.

I think there’s some evidence for both points of view in Flatten’s first report for the institute — a detailed looked at the process of providing access to Sky Harbor concessions contracts for minority-owned and disadvantaged businesses. Goldwater Institute was an early advocate for a proposed state law that would end race-based preferences in government contracts and other policies. Flatten makes clear the proposed law, which the Legislature has asked state voters to consider in November 2010, played some role in inspiring his report.

But Flatten’s investigative work also shines through, especially when it comes to Wilcox. In a nutshell, Flatten reports Wilcox got a sweetheart deal to gain 30 percent ownership of a Chili’s restaurant at Sky Harbor. The master airport contractor who owns 70 percent of the restaurant used the fact that Wilcox is a Hispanic woman to help the contractor meet Phoenix’s minority-ownership rules. In return, Wilcox didn’t have put any money into the business for her 30 percent and she doesn’t have any clearly defined role in operating the restaurant, both of which are a violation of rules from the Federal Aviation Administration, Flatten reported.

Wilcox flat-out refused to answer any questions from Flatten, claiming he was delving into a private business matter. Huh? Wilcox is making money from a taxpayer-funded airport that’s heavily regulated by various governments, and she’s an long-time elected public servant. But she wants to claim privacy? Ridiculous.

Gordon and most administrators at the airport refused substantive interviews with Flatten as well. That might possibly might make more sense, as the Goldwater Institute has been suing that city in a separate, high-profile case. To Gordon’s credit, he gave definite, if brief, answers when Flatten tracked him down for a walking hallway interview. (”No. No, sir,” was about Gordon had to say.)

But Flatten refused to allow those closed doors to stop him. He dug through contracts, email and thousands of other public records to get the story. The great thing about the Internet is some of the most important records are posted with links embedded right into the Goldwater Institute report. So we don’t just have to take Flatten’s word on what he found, we can read the evidence for ourselves.

We continue to miss Flatten here at the Tribune. But it’s great to see that he’s still serving the public by uncovering flaws and undue political influence in government.

Napolitano aims to be TV talking head

October 13th, 2009, 2:48 pm by Le Templar

It seems like every time you turn on a television talk show these days, you run into the secretary of Homeland Security (and former Arizona governor), Janet Napolitano. I’m not talking about the classic news & issues shows such as Meet the Press, Face the Nation or Fox News Sunday. Nor am I talking about her frequent press conferences on the 24-hour cable news to talk about the H1N1 flu.

Napolitano has been venturing out into other venues that have become popular for politicians who want to connect with audiences not fascinated with politics. She started in July with appearances on Real Time with Bill Maher and the Charlie Rose show (which still have audiences with a high political IQ). Then on Monday, she really went mainstream by dropping by for coffee with the ladies on The View (see below) followed by a visit with the fake news meister Jon Stewart. Any day now, I expect to see her laughing with David Letterman or Jay Leno.

Why does this matter? For years, Napolitano was known in Arizona political circles to desire a seat in the U.S. Senate, although she didn’t seem too eager to try and wrestle an election away from John McCain or Jon Kyl. McCain, in particular, built a national following during the 2000 presidential campaign with his appearances on talk shows traditionally viewed as “not serious news.” Most other presidential candidates have tried the same thing since then, leading to one former candidate getting his own talk show.

Napolitano would seem to be following the McCain model. It’s something she doesn’t have to do as a cabinet secretary, and trying to be funny as a non-comedian has plenty of PR dangers, which President Barack Obama learned during a March appearance with Leno.

But these appearances offer some real upsides –  such as national fundraising — should Napolitano run for the Senate somewhere down the road.

Here’s a video of Napolitano’s appearance on The View:

YouTube Preview Image

Munger: Fixing state budget without cuts, tax increase

October 9th, 2009, 2:32 pm by Le Templar
John Munger of Tucson (right), a Republican candidate for governor, speaks with reporters Thursday night about his endorsement from former Gov. Fife Symington (left)/Photo by Capitol Media Services.

John Munger of Tucson (right), a Republican candidate for governor, speaks with reporters Thursday night about his endorsement from former Gov. Fife Symington (left)/Photo by Capitol Media Services.

A common trait in people who run for public office is a high level of self-confidence. Those who pull it off well act as leaders; those who don’t just act with arrogance. I’m still trying to figure out which camp John Munger belongs to a few hours after he told me this:

“If I had been governor last year, we would not have a budget deficit today.”

Munger, a Tucson lawyer and co-founder of the Commerce Bank of Arizona, was wrapping up a weeklong tour of the state after formally entering the Republican primary for governor in 2010. He was kind enough to stop by the Tribune office for about 45 minutes this morning to speak face-to-face about his candidacy. Clearly energized by the endorsement Thursday night from former Gov. Fife Symington, Munger said he could quickly resolve the state’s spending problems without the sales tax proposal from the current governor, Jan Brewer, and without “below the bone” budget cuts that would seem to be required if taxes aren’t raised.

In short, Munger is convinced the governor and state Legislature could kick-start the economy and thus rebuild the state treasury. He wants to pursue initiatives that conservatives and libertarians should love, including:

  • Tear down the regulatory burdens that prevent businesses from expanding or relocating here. Munger’s promise: Most projects would receive state approval within 30 days. “I have clients in my little law firm that could create 500 to 1,000 jobs overnight if they just could get their projects approved.”
  • Lower the corporate income tax and wipe out the property tax on business personal property. “Those aren’t a big part of the budget, but they are important to businesses who are making decisions about the future.”
  • Get new highway construction underway with privately funded but state-owned toll roads. “We could get a $20 billion investment just for (an expanded) freeway from Phoenix to Flagstaff.”

Those are all fine ideas, great even. But they couldn’t possibly overcome a $3 billion to $4 billion budget deficit in the near future, could they? Munger insists they would, but most people at the state Capitol can’t imagine that because they are career politicians with too little experience in the business world. “It’s doable if we harness the power of the free enterprise system.”

Munger has a wealth of concrete ideas about what Arizona should be doing to address immediate problems and long-term challenges. I was impressed with his recent suggestions for state-based health care reform. He wants to convince investors to build a desalinization plant off of the Sea of Cortez to pipe water into the state. He wants to decentralize the state K-12 education by empowering school principals to make most budget decisions, getting rid of school district administrators, and using the savings to dramatically raise salaries for quality teachers.

Munger is probably right that current political trends in the state Legislature means he would have a Republican majority eager to embrace his agenda. But he has to get elected first.

On that subject, Munger says he’s clearly the best candidate for Republicans to send against Terry Goddard or any other Democratic candidate. Munger boldly predicted his four decades in Tucson would translate into more votes than Goddard in Pima County (usually viewed as tilting Democrat), and he would easily rally Republican voters in Maricopa County (where 58 percent of Arizona’s electorate live). “It’s my race to lose.”

Like I said, Munger is either a real leader, or is really arrogant. I can’t wait to find out which is true.

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