Pinal County Supervisor Pushes For More Transparency About 2022 Election Failures

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The Pinal County Board of Supervisors met Wednesday to consider nearly two dozen matters as part of their twice-monthly meetings. One of the most newsworthy agenda items involved the process and advisability of waiving attorney-client privilege and disclosing minutes of executive sessions.

It is a subject that Supervisor Kevin Cavanaugh (District 1) has been wanting to discuss in light of Pinal County’s serious election failures in the 2022 primary and general elections.

Cavanaugh has been very vocal about removing any barriers to full public transparency about who did what and when in the days before, during, and after last year’s two elections and the subsequent court-ordered statewide recount in the attorney general and superintendent of public instruction races.

But Board Chairman Jeff Serdy did not have the item put on the meeting agenda in a way that would allow for public discussion. Instead, it was noticed as an executive session which is a closed meeting between the supervisors and members of the county attorney’s office.

The supervisors cannot disclose what they were told by County Attorney Kent Volkmer during the executive session. It is reasonable, however, to believe Volkmer would want Pinal County to look forward and not back as it relates to the election failures.

One issue is that Volkmer and his staff not only represent the county supervisors, but Volkmer assigned one of his deputy county attorneys to work closely with elections staffers last year.

In fact, the discussions the county attorney’s office had with the supervisors and other county employees about election issues could pose costly problems if Pinal County officials are summoned to testify in Mohave County Superior Court in connection with Abe Hamadeh election challenge against Kris Mayes in the attorney general’s race.

Ethics Questions Could Follow Volkmer And Gaona After Hamadeh New Trial Ruling

A Mohave County judge is expected to rule any day now on Hamadeh’s motion for a new trial. Pinal County’s lack of candor during the December 2022 statewide recount is a significant part of Hamadeh’s arguments.

Having access to Volkmer’s statements and advice to county officials is expected to play a key role in a new trial. It is one reason some Pinal County residents are calling on the supervisors to retain outside legal counsel, rather than rely on legal advice about the privilege issue from the county attorney.

There is also precedent in Arizona for having the confidential records of executive sessions released to the public.

In 2019, Judge Monica Stauffer of the Greenlee County Superior Court was called in to preside over a lawsuit filed against the Cochise County Board of Supervisors in connection with what the Arizona Supreme Court later called a “surprise” vote shrouded in “secrecy” that led to the appointment one of the three supervisors to a highly coveted justice of the peace position with no consideration of other candidates.

The attorney who led the legal challenge was able to convince Stauffer to order county officials to give the judge the usually confidential minutes of an executive session held minutes before the appointment was announced.

The judge made the minutes public in February 2022 after determining that “justices so demands that the minutes be disclosed.” The lawsuit went on to be with a $52,500 payout to the attorney.

There are also reports in Pinal County that Volkmer and his attorneys would sometimes hold private advisory meetings with just two of the five supervisors. This would have avoided open meeting law issues.

Then there is the issue of attorney-client privilege. It permits a client to speak frankly and openly while seeking legal advice from a lawyer.

In turn, the privilege prohibits any court from forcing a client or attorney from testifying about what is said between the two. The attorney is also barred from divulging information related to the client.

However, the client can waive the protections of the privilege. Such a waiver is something Cavanaugh has suggested as a way to clear the air about ongoing questions related to who knew what and when about multiple mishaps that marred

Pinal County 2022 election cycle. It would require the agreement of at least three of the supervisors.

There is also a concern with client-lawyer confidentiality, which is governed not by state law but by Arizona’s Rules of Professional Conduct. Confidentiality, according to the Arizona Supreme Court, applies in situations not involving court proceedings or any attempt to force the lawyer to produce confidential communications against the wishes of the client.

Disclosure of what happens in an executive session matter can lead to criminal prosecution unless done under a court order.

 

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