User’s Guide: Pima County Regulatory Bill Of Rights

On January 2, a Picture Rocks opponent of County Administrator Charles Huckelberry’s proposed Interstate 11 highway through the Avra Valley filed a 10-page formal complaint with the Board of Supervisors. He said it was pursuant to the “Pima County Regulatory Bill of Rights.” Most observers, including supervisors themselves, had never heard of the Regulatory Bill of Rights. Building on the original, dozens of similar complaints were sent to the BOS Clerk for distribution to the supervisors.

On February 20, after receiving a much-belated non-response from the board’s deputy county attorney “on behalf of the county administrator,” the activist filed an appeal citing legally prohibited conflicts of interest and mis-reading of the Regulatory Bill of Rights itself. That same day an unrelated Regulatory Bill of Rights complaint was filed by Pima County resident Mia Tittle concerning the failures of county leadership on road repairs.

Since there seems to be a new interest in the Regulatory Bill of Rights as a means for voters/taxpayers to formally let the county know that they have suffered “adverse effects” from misguided policies and/or the county administrator’s sometimes contrary interpretations of them, ADI Research Services has prepared this summary so that its provisions are available to anyone who feels the need to seek a redress of grievances – as it was intended.

Subject: Regulatory Bill of Rights – Complaints and Appeals Policy Number Page C 2.8

Purpose

To establish complaint receipt procedures for use by individuals adversely affected by ordinances, rules, substantive policy statements, or county or flood control district practices alleged to violate A.R.S. §§11-251.18, 48-3609.02, Title 11 Ch. 11, or Title 48 Ch. 21 Art. 2 of the Arizona Revised Statutes (Regulatory Bill of Rights).

Procedure
Complaints: Individuals alleging that they have been adversely affected by a county or flood control district ordinance, rule, substantive policy statement or practice in violation of the applicable Regulatory Bill of Rights may submit a written complaint to the relevant department Director or their designee. The written complaint must contain the name and address of the adversely affected person making the complaint, reference to the specific ordinance, rule, regulation, substantive policy statement or practice alleged to violate the Regulatory Bill of Rights together with the factual and legal basis for the complaint. The department Director or designee will have fifteen business days following receipt of the complaint to review the complaint and respond to the complainant.
Appeals: A complainant may, within five business days of a response from the relevant department Director, appeal the department response by submitting a written appeal to the County Administrator or designee.

Adoption Date: November 17, 2015 Effective Date: November 17, 2015

ARS 48-3609.02 notes, “rule” means a district statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of a district.”

2015 Arizona Revised Statutes – Title 49 – The Environment – § 49-471.01 Regulatory bill of rights – Universal Citation: AZ Rev Stat § 49-471.01 (2015)

49-471.01. Regulatory bill of rights

To ensure fair and open regulation under this article by counties, a person:
Is eligible for reimbursement of fees and other expenses if the person substantially prevails by adjudication on the merits against a county in a court proceeding or an administrative appeal brought pursuant to this article.
Is entitled to have a county not charge the person a fee unless the fee for the specific activity is expressly authorized as provided in section 49-471.02.
Is entitled to receive the information and notice regarding inspections prescribed in section 49-471.03.
May review the full text or summary of all rule or ordinance making activity and the summary of substantive policy statements in the register as provided in sections 49-471.04, 49-471.08, 49-471.09 and 49-471.11.
May participate in the rule or ordinance making process as provided in this article, including providing written or oral comments on proposed rules or ordinances as provided in sections 49-471.06 and 49-471.08, and having the control officer adequately address those comments as provided in sections 49-471.07 and 49-471.08.
May allege that an existing county agency practice or substantive policy statement constitutes a rule or ordinance and have that county agency practice or substantive policy statement declared void because the practice or substantive policy statement constitutes a rule or ordinance as an appealable agency action under section 49-471.15 or as provided in sections 49-471.12 and 49-497.
Is entitled to have the control officer not base a permitting decision under this article in whole or in part on conditions or requirements that are not specifically authorized by a provision of this state’s law as provided in section 49-471.10, subsection C.
Is entitled to have the control officer identify the legal authority for each condition in a permit issued under this article as provided in section 49-471.10, subsection C.
Is entitled to have a county not make a rule or ordinance under a general grant of rule or ordinance making authority to supplement a more specific grant of rule or ordinance making authority as provided in section 49-471.10, subsection D.
May inspect all rules or ordinances and substantive policy statements of a county, including a directory of documents, in the office of the county control officer as provided in section 49-471.11.
May have the control officer approve or deny the person’s permit application within a predetermined period of time as provided in section 49-471.13.
May have appealable agency actions heard by a hearing board or administrative law judge as provided in section 49-471.15.
May have administrative appeal hearings governed by uniform administrative procedures as set forth in section 49-496 for appeals to the hearing board and title 41, chapter 6, article 10 for appeals to an administrative law judge as provided in section 49-471.15.
Is entitled to request the control officer to waive overly burdensome permit procedures and requirements for sources that are not required to obtain a title V permit as provided in section 49-480, subsection M.
Is entitled to obtain judicial review of decisions by the hearing board, the administrative law judge or the control officer in appropriate cases as provided in sections 49-497, 49-497.01 and 49-497.02.
Is entitled, with the county’s concurrence, to enter settlement agreements with the county to resolve compliance matters without the need for an order, action in court or allegation or finding of violation as provided in section 49-511.
The reference to rights in subsection A of this section does not grant any additional rights that are not prescribed in the other sections of this article.

Section 6 was highlighted since it seems most applicable to alleged violations by the county administrator’s office, such as promoting an Interstate 11 highway in the Avra Valley in direct violation of BOS Resolution 2007-343, or failing to allocate monies for road repairs while spending lavishly on other projects. If the county administrator’s support for I-11 were declared “null and void,” it might be possible to pursue repayment of tax monies used for that support from their budget.

Ultimately, the rejection of a complaint can end up in court:

2015 Arizona Revised Statutes Title 49 – The Environment § 49-497 Declaratory judgment

Universal Citation: AZ Rev Stat § 49-497 (2015)

49-497. Declaratory judgment

Any person who is or may be affected by a county rule or ordinance pursuant to this article may obtain a judicial declaration of the validity or construction of the rule or ordinance by filing an action for declaratory relief in superior court in accordance with title 12, chapter 10, article 2.

The refusal, so far, of the board of supervisors and its chair to take any responsibility for investigating formal complaints against the county administrator is contrary to its own rules and policies. The “department director” that complaints should be directed to, in the county administrator’s case, is Charles Huckelberry himself. Besides defying common sense to have the charged person rule on the complaint against him, several provisions of the law are being violated.

Pima County Code 2.04.010 – General provisions.

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The board of supervisors is the governing body of the county. The powers, duties and responsibilities of the board of supervisors are established in the Constitution of the state of Arizona and the Arizona Revised Statutes, Title 11, Chapter 2. Certain administrative and executive powers and duties of the board may be delegated to other persons or bodies; however, the board has ultimate responsibility for the affairs of the county.

As provided in 2.12.07: The county administrator shall report to the board of supervisors of Pima County, and under the direction of the board of supervisors the county administrator shall be responsible for the general direction, supervision, administration, and coordination of all affairs of the county (including county administrator’s office), except those duties exercised by the other elected officials of the state.

Arizona law (A.R.S. 38-501 et. seq.) requires any Pima County officer or employee who has a substantial interest in any…decision of Pima County to make the interest known in the County’s official records and to refrain from any participation in an official capacity in the…decision.”

Pima County Administrative Procedure 3-26, over Charles Huckelberry’s signature of 9/24/13, states that any employee with such a conflict of interest shall “refrain from voting or participating in the employee’s official capacity or any manner in the contract, sale, purchase, service or decision…Employees who violate A.R.S. 38-501 et. seq. may also be subject to criminal prosecution and forfeiture of employment, as provided by law.”

Hmmm….

Summing up, a complainant must provide a dated written complaint with their name and address and show how they were adversely affected by a county department’s action or policy. Specify the rule, substantive policy statement or practice that caused the harm. The complaint should go to the appropriate department director, or in the case of complaints against the county administrator, to the chair of the board of supervisors – this issue is not yet settled but makes sense. The complaint must be responded to within 15 business days, although this is being ignored. If rejected, the complainant has five business days to appeal.

The state statutes and the Pima County Regulatory Bill of Rights were adopted so that We, the People, could seek redress of our grievances against those in power. The Bill of Rights – use it or lose it!