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Archive for the 'Maricopa County' Category

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.

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.

Stapley arrest suggests Arpaio losing savvy

September 21st, 2009, 4:13 pm by Le Templar

Is there anyone who takes at face value a claim from Maricopa County Sheriff Joe Arpaio that his office’s arrest of county Supervisor Don Stapley this morning has absolutely no connection to Friday’s dismissal of the remaining criminal counts against Stapley from a previous case? Of course, some people believe the original investigation and arrest of Stapley was spurred after Stapley publicly questioned Arpaio’s management of the sheriff’s office in the wake of the Tribune’s Pulitzer Prize-winning series, “Reasonable Doubt.” It’s part of the reason that Maricopa County government has become a feuding snake pit, with Stapley’s colleagues essentially siding with him and against Arpaio in various power struggles and lawsuits.

But a lot of people outside of county government were willing to give Arpaio a lot of leeway politically. Stapley has been a county supervisor for a long time, but he’s also a real estate developer who has close ties to a convicted felon. Perhaps the sheriff’s investigators really had found some wrongdoing on Stapley’s part, many people reasoned.

But to claim today’s arrest was a complete coincidence? I don’t think hardly anyone is going to believe Arpaio this time. This investigation has been underway since January, and supposedly was finished 12 days ago. But Arpaio’s office didn’t refer the case to County Attorney Andrew Thomas or another prosecutor to seek an indictment, which is the typical step for a complex and lengthy investigation targeting an elected official. No, Arpaio or one of his supervisors just randomly decided today was the day to rush out and arrest Stapley. Oh, sure.

The bad timing can only damage the state’s efforts to actually convict Stapley if the sheriff does have credible evidence of felony crimes. Certainly, any judge or jury is going at least wonder if the filing of another 100 criminal charges at this point is politically motivated.

Today’s arrest was the wrong legal move and it didn’t help Arpaio’s public image either. That seems rather odd for a sheriff who usually finesses the latter so well.

RELATED:

Sheriff’s Office: Stapley arrested in tax, campaign, business fraud

County treasurer demands more funding

August 25th, 2009, 11:14 am by Le Templar
Charles "Hos" Hoskins

Charles "Hos" Hoskins

An escalating clash of wills and politics now grips Maricopa County government, as a new lawsuit challenging the Board of Supervisors seems to be filed every day, a number of elected officials are now gunning to get County Manager David Smith fired, and the sheriff seems to be investigating just about everyone else.

One of two new lawsuits revealed yesterday involves county Treasurer Charles Hoskins, who claims Smith and the Board of Supervisors have cut his budget and are interfering with his management decisions to the point that he can’t carry out his constitutional duties. He wants the courts to raise his funding from $2.6 million to $3.4 million and allow him to fill several vacant staff positions.

Arizona’s rich history probably doesn’t include fighting of this intensity between county elected officials. So the courts might need to look to Texas for guidance how to mediate these disputes. When I worked there in the late 1990s, conflicts between the Texan equivalent of a Board of Supervisors and other elected officials was a common, and sometimes comical, feature. In Wichita County, the county treasurer sued the county board twice in five years for failing to fund her office adequately and for meddling with her ability to do her job. The treasurer won both times.

Arizona courts have been somewhat less willing to intercede in what they consider to be political disputes. So Hoskins might not get the relief he seeks. But he could have a case if he can show exactcly how the Board of Supervisors’ actions have disrupted his office.

Gaining insight from inside the jury room

May 15th, 2009, 5:51 pm by Le Templar

superiorcourtweb

I’ve been away from this blog for a while because I spent much of the week serving as juror No. 1 in the state of Arizona v. Sara Byron, a criminal trial before Maricopa County Superior Court in downtown Phoenix.  Being called to jury duty is quite common these days, as at least one of every four adults in this county receives a summons in a single year. Perhaps that’s why so many people who came to the courthouse last week were visibly upset at the idea of getting picked for a trial, even if it lasted only a few days.

On the other hand, it’s still rare for daily news journalists to actually be sworn in. Too often, we know about the case at hand, or we know some of the court officials and law enforcement investigators involved, or we simply can’t be trusted to avoid news reports as the trial progresses.

So I had never been in a jury pool before, which disappointed me because I have long considered jury service to be one of the two basic duties of every U.S. citizen (the other duty is voting). I did have some idea how a Maricopa County jury works, thanks to a 2002 ABC television series called “State v.” But I always wanted to experience this firsthand. Juries from a cross-section of the community are an essential check on the power of a potentially overzealous government, an issue that came up in this particular trial.

Nervous about working with complete strangers who didn’t want to be there, I was pleasantly surprised by what happened. The five women and three men (and two alternates) were normal people with interesting lives who strove in small ways to make our task less onerous – from holding the elevator door for each other to sharing lunch bills to bringing donuts and other treats for the jury deliberation room. It also helped that all of us wanted to follow the rules as outlined by Judge John Hannah. And we shared the same views about the criminal case as soon as the closing arguments were over.

Sara Byron co-owned a dental office in Sun City West, and she was locked in a bitter legal dispute with another co-owner, the dentist, who claimed he actually controlled the business. About a year ago, someone went into the office in the middle of the night, poured gasoline around various pieces of the expensive equipment and started several fires which eventually burned themselves out.

Suspicion fell on Byron because the arsonist got into the building without breaking any door locks or windows. Her alleged motives were revenge against the dentist who dragged her into court, or to obtain insurance money to buy the business outright. But Byron pointed to her roommate and close friend Donavan Bering. After a series of interviews, Bering eventually confessed to the detective that she arranged for the arson with another roommate, Zachary Proctor, who was the one who entered the building and set the fires. Bering and Proctor both pleaded guilty to felony arson.

At this point, you’re probably wondering why Byron as the co-owner was on trial. Well, the roommate Bering said she actually planned the crime with Byron, who handed over a key to the office to make it happen. But Byron insisted the roommate was lying. Bryon told a sheriff’s detective she never would want the business destroyed; that’s why she had fought so hard with the dentist to keep it. Assistant Maricopa County Attorney Jon Wendell didn’t buy Byron’s story, and took the case to trial.

Unfortunately for the prosecutor, Bering was the only person to claim that Byron was part of the conspiracy, and Bering was a terrible witness. Her explanations changed wildly over time. She couldn’t reconcile her story that Byron expected the fire to be disguised as an accident for the insurance money, with how the arson actually was carried out in such an obvious manner. Byron’s defense lawyer, Justin Beresky, called a litany of witnesses who testified that Bering constantly lied about events in her life to manipulate other people.

Finally, Bering’s accomplice, who came across as far more credible, testified for the defense that he wasn’t given any reason to believe Byron was involved.

Once we jurors gathered in our windowless conference room, one woman didn’t even want to bother with deliberations. Quoting from the judge’s instructions, she argued for an immediate vote of not guilty, “The state has the burden of proving its case beyond a reasonable doubt, and this is not even close!”

But Carol the forewoman said we owed it to the state (and county taxpayers) to review all of the evidence and be confident in our final decision. That required about 45 minutes of discussion. As we kept identifying more holes in the prosecution’s case, several of us wondered why there was a trial in the first place. Wendell’s explanation in his closing argument, and again to the jurors after the verdict was read, was that Byron had to be guilty “because she was the only one who benefited” if the business was destroyed.

And that’s the ultimate beauty of including citizen jurors in the administration of justice. If you believe in the concept of innocent until proven guilty, then we never should convict someone simply because a government prosecutor or judge wants to believe that person did wrong. Jurors apply common sense and a diversity of experiences to test whether the accused really deserves to lose her freedom and reputation.

Sara Byron cried and whispered “thank you” as the jurors walked past after the judge had read our verdict. It was our reward for doing our duty as citizens in a country that values liberty so deeply.

Kevin Ross seeks the right kind of revenge

August 5th, 2008, 3:55 pm by Le Templar

   Kevin Ross of Gilbert wants his reputation back, and Maricopa County Assessor Keith Russell just might have to get out of his way.
   Ross is challenging Russell in the Sept. 2 Republican primary for the office that Ross held for almost eight years before he was convicted in 2008 on a felony charge that was later overturned and dismissed. This race has received almost no attention compared to contests for sheriff and county attorney. But Ross did buy some splashy elections ads in the Tribune over the weekend, demonstrating that he’s serious about regaining a position of public trust.
   When Russell, then a Mesa-based private appraiser, first went after Ross as the incumbent in 2004, few doubted Ross would be re-elected. Ross was generally recognized for running a tight fiscal ship during his first two terms while working to limit the impact of rising private property values on county assessments which are used to calculate property taxes. Ross also had championed a constitutional exemption for low-income senior citizens so they could freeze county assessments on their homes.
   But then Ross was accused by state Attorney General Terry Goddard of misusing that new law and the assessor’s office to seek personal profit. Ross had reached a private business deal to use a list of senior citizens who applied for home assessment freezes to market reverse mortgages to them. Goddard’s office claimed Ross had to use confidential information to put the list together and filed felony charges against him.
   Ross didn’t make any money from the reverse-mortgage deal, but Russell benefited heavily from the criminal charges against his opponent and won the 2004 elections. Then Ross was stripped of his title in December 2004 after a trial court convicted him of conflict of interest.
    Almost a year later, the Arizona Court of Appeals threw out the conviction, saying the information that Ross used came from public records and he didn’t violate state laws. By this point, Ross had spent more than $100,000 in legal fees and his name was sullied.
   So in late January 2008, Ross filed notice that he wanted $8 million from Goddard’s office and Maricopa County. On Feb. 1, the Tribune wrote an editorial suggesting he would do far more to regain his lost reputation if he campaigned for and won back the office of county assessor.
   Ross told me in a telephone call shortly after the editorial was published that he understood the reasoning of the Tribune Editorial Board. But Ross explained he was looking at a lawsuit because he wanted someone to say in black-and-white that he had been wronged — and there’s no guarantee he could win an election.
   I responded there were no guarantees Ross could win a lawsuit, either, and it didn’t make sense to demand a huge amount of money from the same taxpayers that Ross had pledged to protect.
   Eventually, Ross took the high road, and now Russell has to make an affirmative case to Maricopa County voters that he deserves a second term.
   Russell’s stewardship hasn’t received any significant criticism. But he does face lingering resentment from a number of property owners because their market values have dropped this year but their county assessments are still rising.
   Russell has a credible explanation: state law limits the amount that a county assessment for individual parcels can climb each year. So many county assessments fell far behind market increases between 2005 and 2007 and still need to catch up.
   The question this year is whether enough Republican voters have heard and understand Russell’s explanation, or whether they believe Ross could handle the state limits differently.

More on early voting — I’m waiting ’til Election Day

July 31st, 2008, 5:09 pm by Le Templar

voted.jpg

   Somewhere around a million Arizonans will vote this year by mail or in person at early polling booths before the dates of the primary and the general election. I won’t be one of them.
   When I moved to Arizona in 1999, I was excited about the concept of early voting. I requested a ballot as soon as possible, studied it closely so I knew which candidates and issues I would vote on, and then held on to the ballot for a couple of weeks. I kept my eyes and ears open for information that could influence my vote, especially on more obscure races.
   But after a couple of election cycles, I came to miss the Election Day ritual of finding my designated polling place, checking in with the poll workers and then marking my ballot at the same time as hundreds or thousands of other people. I also was a little nervous about mailing my ballot and then learning something about a candidate or issue that changed my mind too late to change my vote.
   I tried twice to compromise by requesting an early ballot but waiting to fill it out until Election Day and then dropping it off at my polling place. At least I didn’t have to wait in any lines during the presidential election in 2004.
   It was during that election I discovered the Maricopa County elections office doesn’t count early voting ballots delivered on Election Day until later. It was disappointing to learn my vote wasn’t included in the election night totals.
   So I lost my motivation to get my early ballot done, and in 2006 I requested early ballots but then showed up at the polling place to vote in person instead. My ballot was cast provisionally so the elections office could verify I wasn’t trying to vote twice. I assumed my ballots were eventually tabulated, but I still didn’t feel like they counted like they do when I vote in person on Election Day.
   The November 2006 general election also happened to include a statewide initiative requiring all voters to automatically receive an early voting ballot, and essentially eliminate in-person voting on Election Day. I considered the ballot measure an unnecessary attack on a core element of our democracy that I have come to really cherish. Fortunately, Arizona voters rejected the initiative.
   But I’m guessing the idea will come back, as its supporters are convinced it would boost turnout and save money. I suspect the new permanent early ballot mailing list could serve as a step in that direction.
   I favor the current system of letting any voter who wants to cast a ballot early to do so, but we shouldn’t try to pinch pennies by wiping out Election Day traditions.
  So I’m not voting early anymore. And on Sept. 2 and again on Nov. 4, I will proudly display my “I voted today!” sticker.

Fire district panel stacked against Gilbert

July 16th, 2008, 9:36 am by Le Templar

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REP. RICK MURPHY

   Gilbert gets dealt one bad hand after another on the issue of fire protection for its county islands, and Mayor Steve Berman somewhat childish outbursts on this issue continues to erode whatever public sympathy the town once received.
   As Tribune writer Blake Herzog wrote for Wednesday’s Tribune, a three-person panel has been appointed and will meet Thursday to begin discussions on how much the county island fire district will tax its residents to pay Gilbert for fire service.
   The panel is part of a 2007 state law designed to compel Gilbert to extend fire protection to county islands that refused to annex after a private fire company withdrew. The panel’s job is to settle any disagreements between Gilbert and the independent fire district on much it will cost Gilbert to answer fire calls, and therefore what the district should pay.
   Both the fire district and Gilbert appointed one panel representative each. Naturally, the fire district picked Rep. Andy Biggs, R-Gilbert (county island), a former lawyer who has been the champion of getting municipal fire protection for his neighbors without annexation. Gilbert Town Manager George Pettit is a sound choice to represent the town’s interests.
   But the third panelist, the swing vote who was supposed to be somewhat independent of the two sides, turned out to be Biggs’ nomination, Rep. Rick Murphy, R-Peoria.
   I don’t believe Murphy is Biggs’ puppet. But he certainly seems less than neutral and more inclined to the fire district’s point of view, as illustrated by his comment to Herzog.
   “The reason (Biggs chose me), I would think, is I worked closely with Representative Biggs in crafting the bill, because there are some areas in Peoria and Glendale, Peoria in particular, that may find themselves in the same position as the Gilbert county islands,” Murphy said. “I don’t anticipate the city of Peoria will behave in the same fashion as Gilbert. I hope they don’t.”
   Let’s just say it’s a good bet the fire district will get the property tax rate it wants, which is much lower than Gilbert has proposed.
   Murphy became the third panelist over Gilbert’s objections because he was confirmed by the Republican majority of the Maricopa County Board of Supervisors. That has Mayor Berman demanding, in his special manner, that East Valley supervisors Don Stapley and Fulton Brock be thrown out of office.
   Berman’s stubbornness has tainted the thinking on this issue throughout Gilbert Town Hall, and I believe it has hurt the community in the long run.
   Gilbert was right on the principle that town residents shouldn’t carry the costs for county island property owners who don’t want to annex. But county and state elected officials just wouldn’t accept that a group of people could be without any option for fire protection. Gilbert appeared to be the best organization to help, so it was stuck with that responsibility.
   Once it become clear that Gilbert would no longer avoid the 2007 law, the town could have reached an amicable deal, even if that meant subsidizing the county island residents at first. Healing this bitter dispute could made it possible for Gilbert to approach the fire district later about paying more, once it had evidence from actual experience about the costs of providing fire protection.
   Instead, the fire district is going to be hostile for long time to any Gilbert proposal, no matter how well-intentioned. And it’s going to take even longer to convince many of these county island property owners to eventually annex and become true Gilbert neighbors.

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