The Maricopa County Board of Supervisors is set to meet behind closed doors today to consider whether the board has a conflict of interest with the county attorney.
The matter was brought into question Tuesday when County Attorney Andrew Thomas announced the indictment of supervisor Don Stapley on 118 criminal counts, including perjury and forgery.
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The counts are tied to millions of dollars of land deals that Stapley was required to publicly disclose, according to Thomas. County Attorney’s Office officials worked in conjunction with County Sheriff’s Office personnel to investigate the matter.
None of the five members of the Board of Supervisors could be reached for comment.
The board members have requested five outside counsels to advise them on the matter.
Attorney Paul Charlton, who has had discussions with Stapley on the matter, declined comment on whether Thomas has an inherent conflict of interest in his dealings with Stapley.
“What we want to do is look at the indictment and try to discern what facts, if any, there are to underlie the indictment. Then we’ll be in a position to comment, but at this point in time, we just don’t know enough about the case,” Charlton said Wednesday.
No such conflict exists, said special assistant county attorney Barnett Lotstein.
He cited a 1987 state Supreme Court decision that allowed the state Attorney General’s Office to pursue criminal charges against then Gov. Evan Mecham.
“What the court held at that time was that the attorney general represented the office of the governor, not the individual who occupies that office, and therefore the prosecution of the governor by the Attorney General’s Office was appropriate,” said Lotstein, who was a prosecutor in the Mecham case.
The same legal theory holds true now, he said.
“As it relates to the County Board of Supervisors, the County Attorney’s Office represents the institution of the Board of Supervisors, but does not represent each individual supervisor on a personal basis,” he said.
Aside from the legal aspect, the practical aspect of how Stapley’s and Thomas’ future working relationship could be affected is entirely up to Stapley, Lotstein said.
The question of a potential conflict is murky, said Michael Manning, an attorney who has represented a number of high-profile cases against the county, including seven jail death cases.
“In a vacuum, if the county attorney indicts one of the supervisors for criminal misconduct, that would typically — absent other circumstances — probably not be a conflict for them to continue to give advice to the Board of Supervisors,” Manning said.
The concern about conflict is heightened though because of tensions between Stapley and Sheriff Joe Arpaio and Thomas.
For example, Stapley has been critical of inmate treatment in Arpaio’s jails, and Stapley was the lone supervisor to demand a briefing from MCSO officials after the Tribune’s five-part investigative series on the Sheriff’s Office in July. The series explored MCSO’s illegal immigration enforcement operation, its hidden costs to residents and its threat to civil liberties.
Manning said he expects most county attorneys in similar circumstances would have allowed outside investigators and prosecutors to step in. He said, “I don’t know what their thinking is here, particularly if they’ve got additional investigations going on.”
Manning said, “It’s an ethical quagmire for the county attorney, not that that’s ever bothered him.”
Arpaio declined to address the matter of whether he had a conflict with the board, which sets MCSO’s budget, or with Stapley personally.
“I’m saying the Stapley investigation is still in progress, that’s all,” the sheriff said. “We just do our job. We investigated a person, like we do all the time.”