Who can initiate legal action against an elected official for an alleged violation of Arizona’s Open Meeting Law and Conflict of Interest Statute is now before the Arizona Supreme Court, courtesy of a case from Cochise County.
And the justices’ decision could clarify what punishment -if any- can be meted out to an official found to have knowingly violated one or both of those laws.
“When it comes to holding public officials accountable for backdoor deals, this is the most important case in Arizona history,” appellate attorney David Abney told Arizona Daily Independent on Tuesday after learning the justices accepted the case for review.
In February 2019, the three-member Cochise County Board of Supervisors met for what was noticed as a meeting to discuss how to fill a vacancy for justice of the peace for Precinct 5, better known as the Sierra Vista Justice Court. It is one of the state’s busiest justice courts in a non-metropolitan area.
By the end of that meeting, two of the supervisors voted to appoint Pat Call, the third supervisor, to the position, at nearly double his salary. There was no notice to the public that Call, who is not an attorney, was being considered for the position. Several local attorneys with experience in the justice court were not given a chance to apply.
One supervisor later said Call’s many years of elected service seemed more important than any experience with the judicial system.
The board’s vote, however, was ratified in a special March 2019 meeting due to concerns of non-compliance with Arizona’s open meeting law during the February meeting.
Ratification legally reaffirmed Call’s appointment against future open meeting law challenges, but Welch’s attorneys and Arizona Attorney General Mark Brnovich contend the supervisors could possibly still be on the hook if found to have engaged in any misconduct with Call’s appointment.
David Welch is a Sierra Vista resident who challenged the supervisors’ actions. His attorneys, which include Chris Russell, Jana Flagler, and Abney, also argue that ratification cannot sweep away a violation of the state’s conflict of interest statute.
Call took part in public board discussions about how to fill the vacancy, and even suggested foregoing a nomination committee. He also took part in a non-public executive session with the other two supervisors in the minutes before he was voted into the position.
According to Arizona law, a public officer or employee who has a substantial interest in any decision of a public agency shall make known such interest in the official records of the agency and then “shall refrain from participation in any manner…in such decision.”
No such ratification option is listed in the conflict of interest statute. And that is one reason Russell, Flagler, and Abney are glad to see the supreme court agree to hear the case.
“Corruption thrives in the darkness. Without open and transparent government free from conflicts-of-interest we are no better than a cabal run by the rich and powerful,” Russell said. “History has proven that such a circumstance is always detrimental to the people.”
Russell initially represented Welch in his JP5 case and then took on the challenge to Call’s nomination. He understands that many in the community have been frustrated with how long Welch’s lawsuit is taking to work its way through the judicial system, but he believes the wait is worthwhile even though Call’s term ended in December 2020.
“Due process is a critical element of our rights as citizens of this country,” Russell said Tuesday. “In this case, as in all others, that cuts both ways. It’s important that both sides get the fair opportunity to be fully heard.”
He also added that the issues presented in the case are of statewide importance, and how the supreme court decides those issues will have impact in the future across the state.
Much of the arguments for the supreme court to consider is whether Welch had standing in February 2019 to challenge the board’s vote and the validity of Call’s appointment.
At the time, Welch lived within the boundaries of the Sierra Vista Justice Court and had a misdemeanor case pending in the court. Welch’s criminal case would have been heard by Call except that the Cochise County Attorney’s Office asked for the charge to be dismissed March 1, 2019, the day Call officially took over as justice of the peace.
In April 2019, a judge brought in from outside Cochise County dismissed Welch’s action for lack of standing. But last October the Arizona Court of Appeals issued a unanimous decision finding that Welch did have standing to initiate the legal challenge.
The decision came just two months before Call’s term ended. In November 2020, the county defendants asked the Arizona Supreme Court to review the matter, which put everything on hold. Among the county’s argument is that Welch never alleged he was a taxpayer, only a citizen and county resident within Precinct 5.
But even if Welch had made the claim, the county contends that “mere taxpayer status, without more, does not suffice” to satisfy standing for the type of private right of action undertaken by Welch.
Upon accepting the case for review on Tuesday, the supreme court gave the parties until early May to file updated legal briefings. Then this summer or early fall the attorneys will appear before the justices for oral arguments.
Until then Welch and his attorneys must wait, prompting Abney to note that Welch has had the courage and determination “to fight city hall for year after year when anyone else would have given up.”