2019 Appointment Of Cochise County Board Supervisor To Lucrative Court Position Was Unlawful

justice court
(Photo by Tim Evanson/Creative Commons)

Next month the Arizona Supreme Court will consider a Sierra Vista man’s challenge to how a justice of the peace was appointed in 2019 by the Cochise County Board of Supervisors. And when they do, they will have guidance from Arizona Attorney General Mark Brnovich, who filed a friend of the court brief Monday calling the appointment unlawful.

The justices are slated to hear oral arguments on June 3 in a case brought by David Welch stemming from a February 2019 vote by Supervisors Ann English and Peggy Judd to appoint their fellow supervisor, Pat Call, as justice of the peace of the Sierra Vista Justice Court.

Call took part in public discussions about how to fill the position and even advocated for not setting up a committee that could consider applicants. He also attended a non-public executive session which was quickly followed by his nomination and appointment with no public notice.

Welch initiated legal action in Cochise County Superior Court to challenge the appointment based on violations of Arizona’s Open Meeting Laws (OML) and Conflict of Interest Statute. In response, English and Judd held another vote in March 2019 to ratify Call’s appointment.

Ratification is a process spelled out in OML which allows a public entity to “cure” or reaffirm an earlier action that may have been improperly done. But an out-of-county judge selected to hear Welch’s challenge dismissed the case, arguing he did not have standing to bring the legal action even if a taxpayer of that court precinct. And if Welch did have standing, the judge said the supervisors’ ratification of Call’s appointment made any violations of state law moot.

The Arizona Court of Appeals later overruled the lower court judge after which Cochise County officials sought review by the Supreme Court.  The high court agreed earlier this year to hear the case, prompting Brnovich to file an amicus brief based on his authority to advise courts on issues of statewide importance such as the standing of private citizens such as Welch to initiate OML and conflict of interest challenges.

The Attorney General also noted he has statutory authority to investigate and enforce purported violations of the OML and interpret the OML in favor of open and public meetings. And there is the issue of how ratification after an OML violation should be interpreted.

According to Brnovich’s brief, a citizen’s status as a taxpayer should be considered sufficient to assert standing to bring forth the type of legal action filed by Welch. But Brnovich further argues that proving taxpayer status should not be necessary, whether to bring an Open Meeting Law complaint or to allege a violation of Arizona’s Conflict of Interest Statute.

Brnovich argues that the Legislature long ago provided the standard for standing to bring an OML challenge, as the statute reads “[a]ny person affected by an alleged violation of” the OML may bring suit against the public body.

And the brief argues that the legislative purposes behind the OML and Conflict of Interest statutes supports a broad reading on the issue of standing, noting that the entire purpose for open meetings is “to aid in the conduct of the people’s business” such that meetings and decisions of public bodies are open to the public.

The AG’s brief also argues that while the Cochise County supervisors ratified their February 2019 vote the next month to ensure the result itself would withstand a challenge, ratification should not be used by public officials to avoid accountability for any violations of the law during the original vote.

“Petitioners hope the Court will adopt a standard more akin to the traditional standing requirement. They suggest only those individuals who are ‘aggrieved by’ a violation should have standing,” the brief states. “Petitioners also ask the Court to require ‘an alleged real, tangible injury suffered…But Petitioners’ request is inconsistent with the statutory language.”

But the attorney general also says a threshold for standing should not depend on whether an individual affected by a OML violation is a taxpayer.

“Requiring taxpayer status could potentially preclude individuals ‘affected by’ an alleged OML violation from asserting a claim,” the brief states. “For example, Arizona school districts permit open enrollment for students living outside of a school district’s geographical boundaries…If a school board were to engage in secret decision-making or other alleged OML or conflict of interest violations, out-of-district parents could be left without standing—even though they would be affected by such violations—because they are not taxpayers of the district.”

The issue of standing, according to the brief, should focus instead on whether the individual is a constituent of the public body at issue or has otherwise been affected by an alleged OML violation or conflict of interest.

In this case, Brnovich says Welch “clearly has standing” in that he was a resident of Cochise County, a constituent of the Cochise County Board of Supervisors, a resident of the justice of the peace precinct at issue, and he had litigation pending in that court “at the time that Petitioner Call was unlawfully appointed.”

A key defense put forth by English and Judd is that their ratification act in March 2019 served as a cure to any underlying OML violation or preclude them from being sanctioned for a violation. But Brnovich says that position “is not supported by a plain language reading” of Arizona law.

“And nothing in the statute supports that the Attorney General or a private party are left with no remedy for a violation of the law just because the underlying decision is later rendered valid,” the brief states.

That is what puts the teeth in the sanctions section of the OML which provides for civil penalties against “each person who knowingly violates…or who knowingly aids, agrees to aid or attempts to aid in violating” the OML, Brnovich argues. And it can include civil penalties and payment of attorney’s fees.

In closing, the brief states that Brnovichrespectfully requests that this Court hold that Respondent Welch has standing to assert claims under the OML and conflict of interest statute and that the Board of Supervisors’ attempt to ratify the unlawful decision to appoint Petitioner Call does not deprive Respondent Welch of statutory remedies.”

It is the second time in the brief that the Attorney General refers to Call’s appointment as unlawful. What the brief does not get into is what remedy or sanctions would be appropriate, an issue which is complicated by the fact Call’s appointed term as justice of the peace ended in December 2020.

Brnovich submitted a similar amicus brief to the court of appeals prior to that court’s unanimous decision upholding Welch’s right to challenge the appointment. That brief, however, did not address whether Welch had standing to challenge Call’s alleged violation of Arizona’s Conflict of Interest Statute.

That statute requires any public officer -including a county board supervisor- to provide public notice of a potential conflict of interest related to their official duties. Then that officer is to abstain from all involvement with the matter.