Today, a lawsuit was filed in Pima County Superior Court by Arizona attorney Tim La Sota on behalf of Sergeant Kevin Kubitskey with the Pima County Sheriff’s Office. The Special Action was filed due to the fact that Pima County is withholding public documents related to alleged abusive behavior by Sheriff Chris Nanos.
The lawsuit names Allyn Bulzomi, Human Resources Director of Pima County, and County Administrator Chuck Huckleberry. According to the lawsuit, Bulzomi “has established an employee grievance process and investigates and takes action on employee grievances pursuant to that process. As Human Resources Director, Mr. Bulzomi is responsible for administering this process, subject to direction from Huckelberry.”
The lawsuit reads in part:
Plaintiff Kubitskey sought to utilize Pima County’s employee grievance process to lodge a grievance against his Superior, Sheriff Chris Nanos and Sheriff’s Office command staff for workplace violence and bullying-type behavior directed by Sheriff Nanos against Plaintiff Kubitskey.
Specifically, Plaintiff Kubitskey appeared personally at the office of Pima County Human Resources and made a verbal complaint on February 26, 2016. He complained of bullying by Sheriff Nanos and command staff. The report was made verbally to Human Resources employees Cory Dent and Linda King because they informed Plaintiff that the report had to be made verbally, because if it was in written form it would go to Sheriff Nanos.
Plaintiff Kubitskey also participated in an in-person interview with Pima County Human Resources Investigator Mike Tully, on or about March 7, 2016. Both Mr. Tully and Plaintiff Kubitskey tape recorded the interview.
Since that time, Pima County has produced nothing regarding its inquiry into this matter. Plaintiff Kubitskey has made several inquiries and public records request, dating back to July 11, 2016, yet Pima County has produced nothing.
On July 11, 2016, Plaintiff sent Mr. Tully an email inquiring as to the status of the report. On July 26, 2016, Mr. Tully responded that “The investigative report has been completed and sent to the chain of command for signatures.”
On August 24, 2016, Plaintiff sent Mr. Tully a follow up email again inquiring about the status of the report. Mr. Tully responded the same day that “[t]he report is currently under review by central administration.”
On October 11, Plaintiff Kubitskey filed a public records request online and received a confirmation of receipt of the request from Pima County. Plaintiff requested “All documents, whether stored in paper or electronically, regarding two complaints filed by Pima County Sheriff’s Office Sergeant Kevin Kubitskey alleging various incidents of bullying behavior and workplace violence directed against him by his superiors in the Sheriff’s Office, including Sheriff Chris Nanos. The complaint was filed in March of 2016. This request includes all materials gathered in the investigation of these incidents, and all notes, drafts and other documents prepared during the investigation.”
On October 17, 2016, Plaintiff Kubitskey emailed Pima County Human Resources employee Corey Dent and asked “when I might get a response to my FOIA request?” Ms. Dent replied that “[a]t this point I don’t have an answer for you. I forwarded documents to Mr. Bulzomi last Wednesday and he requested that I set up a meeting (this afternoon at 2:00) with us and others to discuss it further.”
Plaintiff alleges the allegations in paragraphs 1-18 as if stated herein.
Pursuant to A.R.S. § 39-121, “public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.”
Public records are defined as all records “reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from this state or any political subdivision of this state.” A.R.S. § 39-121.01(B).
Pursuant to A.R.S. § 39-121.01(E), “[a]ccess to a public record is deemed denied if a custodian fails to promptly respond to a request for production of a public record or fails to provide to the requesting person an index of any record or categories of records that are withheld from production pursuant to subsection D, paragraph 2 of this section.”
Documents gathered or created by Pima County or its employees in conducting its investigation into the allegations made by Plaintiff Kubitskey meet the definition of “public records” under Arizona law.
According to employees of the Pima County Human Resources Department, documents related to this investigation do in fact exist.
The Defendants are the legal custodians of the public records, are in possession of the public records, and have wrongfully denied Plaintiff access to these public records. In doing so, they have failed to perform a duty as to which they have no discretion but to perform, and have proceeded without lawful authority. Special action relief is available under these circumstances. Ariz. R. P. Spec. Act. 3(a) and 3(b).
Plaintiff has the right under Arizona statutory law as well as the Arizona Constitution to maintain this cause of action to secure access to the public records he has requested and been denied. A.R.S. § 39-121.02(A); Arizona Constitution Art. VI, § 18.
In an interview on the James T. Harris show, La Sota stated that Pima County did an investigation of Sergeant Kubitskey’s allegations and “had an interview in March of this year and still there are no reports. We’re not talking about some complicated inquiry. It should’ve been resolved and we have a right to the records that were created as a result of the investigation.” La Sota concluded, “And oh by the way there’s an election coming up, so there could be a reason they’re holding up these documents.”