Supervisors want Thomas to pay for subpoena fight

Maricopa County Attorney Andrew Thomas should be personally liable for the cost of fighting a subpoena that was quashed by a Superior Court judge, according to a motion filed this week by lawyers representing the Board of Supervisors.

Judge Gary Donahoe of Maricopa County Superior Court unsealed an order late Friday that rejected Thomas' attempts to subpoena documents related to construction of a $340 million county court tower in Phoenix. Donahoe concluded Thomas' office has a conflict of interest in pursuing the investigation because its civil lawyers gave legal advice to the Board of Supervisors related to the building.

Donahoe made the ruling Feb. 9, but it was sealed until Friday because it related to a normally secret grand jury matter. The ruling has already been appealed by the county attorney's office.

In a notice filed Monday in a separate civil case, Thomas Irvine, a private lawyer hired to represent the board in its ongoing battles with Thomas, said he will seek sanctions against Thomas personally amounting to the county's cost of fighting the subpoena in court.

"Only such sanctions can deter the conduct experienced in these actions where a public official so wantonly uses public money in efforts that result in the presence of the 'appearance of evil,'" Irvine wrote in the court filing, borrowing a phrase from Donahoe's ruling that quashed the subpoena.

Thomas has been in legal battles with the board since December, when he announced the indictment of Supervisor Don Stapley on 118 criminal counts alleging he failed to list business and real estate interests on financial disclosure statements he is required to file as an elected official.

Issues related to the new court building are not part of that indictment, but are the subject of an ongoing investigation being conducted by the Maricopa County Sheriff's Office.

The sheriff's office also has filed public records request for documents related to the court tower. However, since the Stapley indictment, the board has adopted a policy that all public records requests for county documents filed by a county agency or employee must go through an internal process and be approved by the county manager.

Barnett Lotstein, special assistant county attorney, said if Donahoe's ruling stands, it would complicate but not end the investigation.

If investigators cannot obtain documents through a grand jury subpoena or public records request, the only option left would be to seek a search warrant, Lotstein said. That requires that they show probable cause that a crime was committed, which is not a requirement of a subpoena or a records request, he said.

"It makes it more difficult for the sheriff to conduct an investigation," Lotstein said, stressing Donahoe's ruling is being challenged in the state Court of Appeals. "That may be the objective of some people."

Lotstein said attempts to hold Thomas personally liable for court costs is "an attempt at intimidation."

Irvine did not return repeated phone calls seeking comment.

County Manager David Smith said the legal action and the board's policy on public records are not meant to block any legitimate investigation. Rather they are efforts to ensure prosecutors follow the law in seeking documents through subpoenas, and to control costs in dealing with overly broad public records requests.

Smith also said the policy on public records adopted by the board in January is voluntary, and that county agencies are not required to use the internal procedure. That is a departure from previous explanations of the policy and the language in the resolution adopted by the board.

The board's action states no county official "may issue a public records request upon Maricopa County or its departments." Rather, they must use the internal procedure, which gives the county manager the power to resolve any disputes, according to the language adopted by the board.

Smith said the county's goal is not to block the investigation.

"They can investigate anybody they want for any reason they want," he said of Thomas and Sheriff Joe Arpaio. "But there are rules for how you do this work and they don't think the rules apply to them."

Smith added there is no indication anything improper was done in the planning and design of the court building.

"Obviously Thomas and Arpaio wanted to investigate this project for some reason," Smith said. "I have never heard of any allegation of any kind that's come from any source with respect to any irregularity on this project. It's just amazing to me that they think there is something to investigate."

Arpaio said in a written statement that he will continue to pursue the investigation.

"We will move forward with a vigorous investigation of the court tower as well as our other corruption cases," Arpaio said.

It is not clear how Donahoe's ruling, if upheld, will affect the criminal case against Stapley.

Defense lawyers have raised a similar argument that the county attorney cannot prosecute Stapley because lawyers in its civil division have provided legal advice to the board. However, Donahoe specifically stated that Thomas' office could not be involved with the investigation of the court tower because it had provided legal advice on that issue. He left open the possibility documents related to the court tower could be subject to a subpoena from a different prosecuting agency.