In a ruling expected to send shockwaves among every public body in the state, the Arizona Court of Appeals found that a Sierra Vista resident had standing last year to challenge the actions of the Cochise County Board of Supervisors who appointed one of their own to a lucrative court position.
The unanimous opinion authored Friday by the appellate court’s presiding judge found that the resident, David Welch, had standing to challenge the February 2019 appointment of Pat Call as justice of the peace of the Sierra Vista Justice Court. Welch also “sufficiently pleaded violations of Arizona’s open-meeting and conflict-of-interest statutes” which warranted further proceedings.
The result, according to the court of appeals, is that Welch can continue to challenge Call’s appointment and Cochise County’s top elected officials could face sanctions for their actions.
Chris Russell, Welch’s attorney, is the vice chair of the State Bar of Arizona’s rules committee and a member of the Litigation Counsel of America He was assisted in Welch’s case by attorneys Jana Flagler and Bob Stachel, along with Welch’s appellate attorney of record, David Abney.
For Russell, the strong language in the court of appeals opinion comes after “a tough fight” that pitted the local attorneys against the county establishment.
“The decision illustrates for governing boards across the state the importance of being transparent in the decision making process, following open meeting laws, and avoiding conflicts of interest,” he told Arizona Daily Independent on Friday. “The appellate court’s decision confirms the taxpayer citizens’ ability to hold our governing boards accountable. For today, Mr. Welch can rest knowing that he has a voice and his government is accountable to the people it serves.”
Welch sued in Cochise County Superior Court within days of Call’s Feb. 12 appointment, arguing that Call’s active participation in the board meeting at which he and the county’s other two supervisors discussed how to fill a March 1 vacancy to one of Arizona’s busiest justice courts violated state laws.
However, his lawsuit was dismissed months later by Greenlee County Superior Court Judge Monica Stauffer who was appointed to hear the case to avoid a conflict with having a Cochise County judge preside over the matter. Stauffer ruled Welch failed to show standing to challenge to the appointment even though at the time Welch had a pending criminal case in the justice court and could have stood trial before Call.
Stauffer also ruled that even if Welch had standing, he had not made any claim which the judge could act on.
But on Oct. 9, the court of appeals overturned Stauffer’s rulings and sent the case back to her for a new proceedings in accordance with the appellate opinion.
“Here, Welch has alleged open-meeting and conflict-of-interest violations resulting in an illegal expenditure of municipal funds: a salary paid to an official who improperly participated in his own appointment during a process that was improperly shielded from public view,” the opinion states. “Welch’s interest in receiving good value for money spent is frustrated when an insider improperly participates in his own selection for a salaried public office in a process that lacks required transparency.”
During the Feb. 12 meeting, Call supported an idea to bypass an application process or utilization of a nomination committee even though court officials were on record that court operations could easily be covered for several weeks while interested candidates were considered.
Call was also involved in adjourning the public meeting so the supervisors could meet in a non-public executive session. Upon reconvening from the executive session, the public meeting immediately went into recess with an announced restart time of 11:30 a.m.
Public records show the supervisors did not return from the recess until after 12:30 p.m. Their first order of business was a motion by Supervisor Ann English to appoint Call as justice of the peace, a position which doubled his salary. The vote was 2-0 with Call abstaining.
“The February 12 agenda gave no notice that the board would be considering Call, one of its own, for the position,” according to the court of appeals. “English’s motion to appoint Call was the first substantive action taken after the executive session—raising an inference that Call’s candidacy was discussed in that private session.”
In fact, it was later announced that English knew before that meeting of Call’s previous interest in running for the justice of the peace position many months earlier. Despite this, none of the supervisors addressed the state’s conflict of interest statute during the meeting.
Arizona Revised Statute 38-503(B) reads in part that any “public officer…who has…a substantial interest in any decision of a public agency shall make known such interest in the official records of such public agency and shall refrain from participating in any manner as an officer…in such decision.”
But according to the court of appeals, “Welch has sufficiently stated a claim against Call for conflict of interest. He alleges facts showing that Call actively participated in the board’s decisions to exclude others from consideration for the justice-of-the-peace position, then voted to go into closed executive session. Welch’s allegations raise an inference that Call may have advanced his own candidacy in the executive session.”
Welch’s lawsuit also called for sanctions against Call, English, and Peggy Judd for violations of Arizona’s Open Meeting Law. The county argued any deficiencies with public notice of the Feb. 12 meeting and vote were cured when the two supervisors who voted for Call met again a few weeks later to ratify his appointment.
Stauffer agreed with the county and ruled that even if Welch would have had standing to challenge the appointment, the ratification resolved all open meeting issues.
But on appeal, Welch’s position was helped by an amicus (friend of the court) brief by the Arizona Attorney General Mark Brnovich on the subject of sanctions even after an open meeting violation has been corrected.
The court of appeals sided with Welch and the attorney general, ruling that while the county board may have ensured the effectiveness of the vote via ratification, nothing in state law negates an open-meeting violation in any other way.
“We therefore conclude that ratification does not preclude possible sanctions,” the opinion states. “Thus, despite the board’s ratification, the trial court erred in dismissing Welch’s claims for sanctions under the open-meeting laws.”
The appellate decision does not take affect for 30 days in order to give Cochise County officials time to petition for review from the Arizona Supreme Court. If no petition is filed, then Stauffer is expected to hold a status conference on the matter in early December. Call’s term expires Dec. 31.