SIERRA VISTA — A resident’s legal challenge against the Cochise County Board of Supervisors for their appointment of the Sierra Vista Justice of the Peace more than a year ago has been reinstated and can move forward, a judge ruled last week.
The ruling by the Arizona Court of Appeals allows David Welch to continue his case against the appointment of Pat Call as Sierra Vista Justice of the Peace by Cochise County Board of Supervisors members Ann English and Peggy Judd. The two supervisors named Call to the bench on February 12, 2019. Call was the third member of the board at the time.
Welch filed his complaint two days later on Feb. 14, contending that the appointment violated Arizona’s open meeting law prior to the vote, and that Call violated the state’s conflict of interest law leading up to the vote.
Welch also claims that Call participated in a discussion earlier in the Board of Supervisors’ meeting to forego an application process for filling the vacancy, and then participated in a non-public executive session prior to English making the motion to appoint him to the position.
A recording of the public portion of the meeting shows Call was never asked if he was interested in the position or whether he would accept the position. Those discussions, according to Welch’s complaint, occurred privately.
The Board of Supervisors filed for dismissal of Welch’s complaint in March 2019, arguing, among other things that a citizen doesn’t have standing to bring the court action challenging Call’s appointment, the alleged violations of the state’s conflict of interest law don’t apply to the Call matter, and Welch’s complaint requested relief the judge could not grant.
In April 2019, Greenlee County Superior Judge Monica Stauffer, dismissed Welch’s four-count lawsuit. She heard the case at the request of Cochise County court officials who wanted to avoid the appearance of a conflict of interest.
It was Stauffer’s ruling that the Arizona Court of Appeals responded to, and remanded Welch’s case back to her court with their ruling.
“We reverse the trial court’s ruling dismissing Welch’s claims subject to the qualifications described in this decision, and remand for further proceedings consistent herewith,” the ruling issued on Oct. 9 says.
“Welch contends the court erred in concluding he lacked standing and had failed to state claims on which relief could be granted. Because Welch has standing as a taxpayer and has sufficiently pleaded violations of Arizona’s open-meeting and conflict-of-interest statutes, we reverse,” the court wrote.
Welch could not be reached for comment and one of his attorneys did not respond to an email by the Herald/Review. Call, who is not seeking another term, also did not respond for a request for comment, while English declined comment when reached by phone on Monday.
Judd however, blamed the Board of Supervisors’ legal counsel for the panel’s move in 2019.
“I must have been given bad legal counsel,” said Judd, who had not seen the ruling. “I went on their advice. Obviously we had to ask. I can tell you we had two legal counsel in the room and we never would have done something they would have told us not to do.”
The 14-page Arizona Court of Appeals ruling, authored by Presiding Judge Karl Eppich, sheds some light on the court’s reasoning for sending the case back to the lower court.
“Taken as true, the allegations in Welch’s complaint establish an open-meeting violation. According to the allegations, the board recessed the February 12 meeting and provided the public with a time that the meeting was to resume, but it resumed the meeting more than an hour later than the time it had provided,” the ruling states.
“The public was therefore not adequately noticed as to the time the meeting resumed. See § 38-431.02(E). And while the board argues that any violation that occurred was at most a technical violation, the alleged untimely resumption of the February 12 meeting, when viewed in the context of the allegations as a whole, suggests something more substantial. The Feb. 12 agenda gave no notice that the board would be considering Call, one of its own, for the position.
“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,” the ruling states. “But when the board resumed public proceedings, it recessed and did not reveal Call’s interest in the position, which was not disclosed until the reconvened session.”
“Taken as true, the facts as alleged support an inference that the board contravened ‘the intent of the legislature to open the conduct of the business of government to public scrutiny and to ban decision-making in secret,’ thus constituting more than a mere technical violation,” the court said.
Eppich also wrote that Welch had established a possible conflict of interest as well.
“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,” the judge wrote.