Over the years, Pima County administrator Chuck Huckelberry has used any means necessary to ensure that there is little to no oversight or verifiable integrity in Pima County elections, according to John Brakey of AZAUDIT. Now, with a bond measure on the line, Huckelberry is pulling out all the stops to prevent what little oversight area residents had through the Pima County Integrity Commission.
Using the Arizona Attorney Generals’ Office and Open Meeting laws, Huckelberry has launched an assault on the unpaid citizens of the Pima County Integrity Commission by filing his own Open Meeting complaint against the group. Huckelberry, who has had an adversarial relationship with the majority of the Commission, claims that the County is “self-reporting” a violation by the Commission when members discussed, at an opening meeting, items that were not on the agenda as a result of a citizen’s inquiry during a call to the audience.
(Read Huckelberry’s complaint here.)
During the call to the audience, at the May 9, 2014 meeting of the Pima County Integrity Commission, Richard Hernandez of the Sunnyside Recall Committee asked the commissioners to consider his request that they intervene, on the residents’ behalf, with the County Elections department. Hernandez had sought to prevent the County from counting the votes early. It has been alleged that in the past, the County has used the results of early counts to inform favored campaigns as to whether they need to take extra measures to ensure a win.
Due to the fact that only a small number of votes were expected in the Sunnyside Recall, Hernandez argued that there was no legitimate reason for the County to engage in early counting. Sunnyside Governing Board candidate Mike Polak joined Hernandez in the request.
According to Commissioner Mickey Duniho, “The Sunnyside School Board candidates came to complain that Brad Nelson was planning to count the early ballots a week before Election Day. Their point was that the entire scanning of early ballots was likely to take only an hour or two and could easily wait until Election Day. I responded to the complaint by asking Brad if there was some logical reason why he could not delay the scanning until Election Day. He at first refused to answer my question, and Benny White went berserk, claiming that we could not comment on the call to the audience. I stated that I was merely responding to the complaint and not proposing any action for the Election Integrity Commission. After extensive back and forth, Tom Ryan (chairing the meeting) said he didn’t see any reason why Brad could not answer my question. Brad then said that the reason was that he merely didn’t want to delay until Election Day. I don’t remember any further discussion other than some talk about whether we should call a special meeting of the Commission, which no one wanted to do.”
“My interpretation of the Open Meetings Law is that we are permitted to respond to complaints from the audience; we are not allowed to discuss any possible action by our organization,” concluded Duniho, “which we did not do.”
According to Brad Nelson, head of the Pima County elections department, the only thing that prevented the County from only counting votes on Election Day was that his office was busy and he would prefer to break up the long and arduous count over a number of days.
After intervention by Pima County Supervisor Ally Miller, and tremendous public pressure, the votes were not counted until Election Day. It took a total 69 minutes to count a total of 4000 ballots.
“It appears to me that this is a false complaint by a person who was not even at the meeting,” said Duniho. “No member of the public complained about our answering their complaint at the meeting.”
Tucson attorney Bill Risner has reviewed the film of the Commission meeting and the complaint file by Huckelberry and agrees with Duniho, “I see an attempt to intimidate Commissioners but not a violation of the Open Meeting law. A.R.S. 38-431.01 H allows members to ask staff to review a matter. In this case the staff person answered a question which was his review of the matter. There was no legal action or discussion by the group. Under Arizona law the standard for public bodies is substantial compliance,” stated Risner.
In an email Risner cited a court decision; Carefree Imp. Ass’n v. city of Scottsdale 133 jAriz. 106 (App 1 1982), in which the Court found, “We agree with Scottsdale that technical violations and minor deviations from the requirements of the open meeting law should not render action by a public body null and void, so long as there is substantial compliance with the open meeting law.”
Despite their failure to respond to citizens’ complaints in a timely manner or at all, the Attorney Generals’ Office has moved quickly against the Commissioners. Commission Chair Tom Ryan was contacted by AG staff attorney Debra Sterling that he has 30 days to respond to the allegations made by Huckelberry.
To further intimidate the commissioners, Huckelberry has worked with his operatives on the Commission to schedule an Executive Session during the Friday, July 11, 2014 meeting for “legal advice.” Duniho says, “I don’t know who is planning to give us legal advice, since the County Attorney’s office has repeatedly told us they will not provide any legal advice to our Commission.”
According to Pima County employee Sarah Ballentine, Huckelberry has enlisted the services of the RTA’s attorney, Thomas Benavidez, to attend Friday’s EIC meeting. According to Ballentine, “He does not work for the County Attorney, but was asked by the County Attorney to provide counsel and he has agreed.”
It was the RTA bond election that first raised red flags and questions about the integrity of Pima County election processes.
Commissioners are concerned that the Executive Session, outside of the public’s view, will be an opportunity for Huckelberry and his attorneys to intimidate the commissioners and force an outcome Huckelberry wants. Commissioners fear that Huckelberry would try to force some kind of an admission of guilt, which Huckelberry could then use to finally shut down the Commission once and for all.
Author J.T. Waldron, who has written extensively on the RTA Bond Election said, “Correct me if I’m wrong, but the Election Integrity Commission was formed as a result of litigation surrounding the RTA election. Like an act of retaliation, Huckelberry now wants to subvert this group’s efforts so he hires the lawyer who represented the RTA in their effort to discourage transparency. What an amazing show of arrogance.”
According to one complainant, they received a letter last February from the Attorney Generals’ office, stating that the office had received the complaint and were researching it. In June, the complainant phoned the AG’s office again to complain that they had not heard anything and felt that the office had enough time to research it. The office informed the complainant that they would contact them when the research was finished. The complainant has yet to hear back from the AG’s office.
However, according to the Attorney General’s office they cannot release information on ongoing investigations. According to Marlena Soto, “The timeframe for review and/or investigation will depend largely on what the attorney finds. No report will be given until the review/investigation is complete.”
To date, the Arizona Attorney General’s office has received four complaints, in the past four months, against Pima County alleging Open Meeting law violations. All supervisors have been named in complaints, except Supervisor Ally Miller.
It is all but certain that if the AG’s office does not do Huckelberry’s dirty work for him, Huckelberry will find one way or another to shut down the Elections Integrity Commission before the 2015 Bond Measure comes before the voters.
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Pima County BOS to hear from Election Integrity Commissioner