The Maricopa County Board of Supervisors voted Wednesday to curb access to public records by the county attorney who has indicted one of their own.
The board unanimously approved a new policy that requires all county agencies seeking county records to go through an internal procedure rather than filing requests under the state's public records law.
The action is in response to a series of requests from the county attorney's office, which last month announced the indictment of Supervisor Don Stapley on 118 criminal counts alleging he did not disclose business deals and income on financial reports he is required to file.
Stapley, a Mesa Republican, did not attend the meeting.
Within weeks of the Stapley indictment, the board stripped County Attorney Andrew Thomas of his power to represent the county in civil court cases. Thomas has challenged that action in court.
The board's action Wednesday is illegal and will be challenged, said Barnett Lotstein, special assistant county attorney. The board cannot alter state law by adding restrictions or procedures on county agencies seeking public documents, Lotstein said.
"The policy is ridiculous," Lotstein said after the board approved the measure at a special meeting. "This is an attempt by the Board of Supervisors to deny legitimate public records requests in retaliation for the Stapley prosecution. It's almost as if there is a cabal of people sitting up there trying to figure out ways to thwart the investigatory ability of the county attorney."
Dan Barr, a private lawyer who often represents the media in cases involving access to public records, agreed the board cannot create a policy that would restrict the ability to obtain those documents under state law. The statute specifies any person can request public records, Barr noted.
"Whatever you think of Andrew Thomas, he is a person and he can't be treated differently under the law than anybody else," Barr said. "The whole point of the public records law is that everybody has the same rights, and you can't discriminate against people based on who is asking and what they are asking for."
County agencies have been hit with about a dozen requests for public records filed by the county attorney and sheriff's office seeking documents related to the Stapley case, as well as the actions taken by the board since the indictment was made public last month. Among the records being sought in the various requests are contracts for outside lawyers hired by the board, political consulting and advertising contracts approved by the board and information on a proposed new county court building.
Many of the requests from the county attorney's office, filed by spokesman Michael Scerbo, are for records and communications such as e-mails related to the contract with Richard Romley. Romley, Thomas' predecessor as county attorney, has been hired by the board as a consultant to provide advice in dealing with potential conflicts of interests involving Thomas.
Scerbo also requested information on the board's contract with Tom Irvine, a private lawyer who is representing the board in its ongoing battles with the county attorney's office.
The policy adopted Wednesday sets up an internal procedure that county agencies must use rather than filing public records requests. Any disputes would be resolved by the county manager.
It would apply only to county agencies, not the media or members of the public, Irvine said.
The intent is not to circumvent state records laws, but rather to save the county time and money in dealing with cumbersome internal requests for documents, Irvine said. Documents requested by the public or the media often must be redacted to take out information such as Social Security numbers, Irvine said. Those redactions will not be necessary for county employees such as investigators from Thomas' office, he said.
He also maintained the board does have the ability to set procedures for how county employees seek documents on county time.
"It doesn't abolish the public records act," Irvine said. "The statute is still there. It just says that before you get to the statute, before you waste a lot of county money, you've got to try to save county money."
Much of the information that has been requested by both the county attorney and sheriff is readily available, some of it online, Irvine said. For instance, the sheriff's office has requested the minutes of the county planning and zoning board going back 10 years, he said.
While county employees still could file records requests as private citizens, if they are doing it on county time they would have to use the internal procedure, Irvine said.
Supervisor Andy Kunasek said the board's action Wednesday, and the prior acts to freeze the county attorney out of his duties in civil matters, are not retaliation for the Stapley indictment.
Rather they are an attempt to keep the county government functioning despite having to deal with a county attorney who has numerous conflicts of interest, Kunasek said.
Public records requests are a good example, he said. Normally, a county agency would consult with the county attorney on what documents should be released in response to a public records request, Kunasek said. But there is a conflict when it is the county attorney requesting the documents, he said.
"It's just ongoing actions by the county attorney, by the sheriff, that are making it almost impossible to carry out the functions of government," Kunasek said. "Nobody's trying to keep them from gathering what they think they need. It seems to be a real desire by those electeds (Thomas and Sheriff Joe Arpaio) to make this about Don Stapley. This is about us carrying out the functions of government."