BISBEE – A judge has refused to block the Cochise County Board of Supervisors from meeting Thursday to consider whether to ratify its Feb. 12 vote which appointed then-Supervisor Pat Call to serve as the justice of the peace for the Sierra Vista Justice Court.
Ratification is a statutory right of the county board to reaffirm legal action taken by a board despite deficiencies in compliance with open meeting law (OML). The agenda of the 9:30 a.m. special meeting also includes a call to the public segment, allowing citizens to comment on Call’s appointment for the first time since it was announced.
Greenlee County Judge Monica Stauffer ruled late Wednesday that she was denying a motion for a temporary restraining order filed earlier in the day by the attorneys for David Welch, who filed a lawsuit Feb. 14 against the board and the individual supervisors to have Call’s appointment declared void due to alleged violations of the state’s conflict of interest law and open meeting law.
Attorney Jim Jellison, who is representing the county board in the Welch litigation, argued against any injunctive order, noting the supervisors had a legal obligation to appoint someone as justice of the peace when a vacancy occurred. He also argued there was no conflict of interest violation and that Welch doesn’t have standing to bring the legal action.
This is the second time the county board has provided public notice of an interest in ratifying Call’s appointment. The first attempt, scheduled for Feb. 26, was canceled after a Cochise County Superior Court judge issued a preliminary injunction against the effort the day before.
That injunction was reversed last week by Stauffer, an out-of-county judge assigned to preside over Welch’s lawsuit. The judge ruled there was an abuse of discretion by Judge Laura Cardinal in issuing the order, which made it unenforceable.
Although Stauffer threw out the first injunction and denied the second request, she has set several court dates and deadlines to move the lawsuit forward. Neither of her decisions has addressed the merits of Welch’s lawsuit filed by Sierra Vista attorneys Chris Russell and Bob Stachel.
Russell told the Herald/Review he understood why Stauffer voided the first injunction, but said he was disappointed she didn’t block the ratification or Call’s continued participation in cases at the Sierra Vista Justice Court. However, he added he’s encouraged that “there will be a full hearing on the merits where the court will consider the important issues which include the self-dealing and conflict of interest.”
Violations of the state’s conflict of interest statutes, which can result in criminal charges, cannot be negated or corrected by the ratification action.
Documents obtained by the Herald/Review show the Arizona Ombudsman Citizens’ Aide (AZ-OCA) office received a citizen complaint Feb. 22 alleging the board violated the OML during the Feb. 12 meeting. The AZ-OCA is a department of the Arizona Legislature, and is the state’s in-house expert in the area of OML and public records law.
The complaint was assigned to AZ-OCA staff attorney Danee Garone, who reviewed the meeting records, including the Feb. 12 minutes which show Call participated in discussion about the vacancy during the first part of the public meeting. He also attended the non-public executive session held prior to the second part of the public meeting, which included the motion for his appointment.
Call abstained from the vote, but he was on the dais with the other supervisors.
Garone then contacted the Cochise County Attorney’s Office, which represents the county board. In a summary of the matter, Garone noted he discussed his “concerns over the potentially misleading agenda language” and the amount of time the board recessed between the two parts of the meeting.
He also wrote that “a judge could conceivably find that either or both issues constituted a violation of the open meeting law and hold that the appointment vote was null and void.” As a result, Garone suggested the county ratify the Feb. 12 vote within 30 days of the original vote.
However, Garone noted any question of whether Call or the other supervisors violated conflict of interest laws was outside AZ-OCA’s authority and suggested the complainant contact the Arizona Attorney General or take the matter to court.
Welch’s attorneys have subpoenaed the minutes of the executive session, a request that will require a court order, as executive sessions are considered confidential proceedings.
The county board is represented in the Welch case by attorney Jellison from Phoenix. Although Jellison is handling the litigation aspect of the case, the county attorney’s office is also involved in various ways.
“Given the circumstances, this office felt obliged to retain outside counsel in this particular matter,” County Attorney Brian McIntyre told the Herald/Review. “Mr. Jellison is handling the case while our office retains a role with respect to communication and other issues given that the Board is statutorily our client.”
The agenda for the Thursday’s meeting does not indicate whether newly appointed supervisor Tom Borer will participate in the ratification discussion and possible vote. Borer came on as a supervisor March 1 after he was selected by supervisors Ann English and Peggy Judd to fill the vacancy caused by their appointment of Call as justice of the peace and Call’s coinciding resignation from the board, on which he served for 18 years.