Undie-Gate

Public shouldn't see Posse Foundation records, judge rules

Sheriff Joe Arpaio won't have to reveal how much money his posses have raised and how they spend it.

Superior Court Judge Rebecca Albrecht has rejected arguments that the private, nonprofit posses are so closely controlled by Arpaio that they should be subject to the state's open records law.

In October, New Timessued Arpaio, asking that Arpaio be forced to turn over posse financial records. The newspaper argued that Arpaio's control of the posses made these records public, and cited depositions of sheriff employees as well as newspaper stories that documented Arpaio's close hold on the posses and their financial dealings.

But, in a March 17 decision, Albrecht held that the posses and their fund-raising arm, the Posse Foundation, did not meet state definitions of public bodies.

The posses refuse to explain reports of irregularities in the raising of hundreds of thousands of dollars.

In 1995, Sheriff Arpaio said that theft of inmate underwear prompted him to begin dyeing male inmates' boxer shorts pink in order to save money. The sheriff contended that inmates were smuggling out boxer shorts to "sell on the street," but provided no evidence of his claim. In fact, records indicated that the jails were actually spending more on underwear for female inmates, but Arpaio did not complain about that expense. Instead, almost as soon as he began dyeing the boxer shorts, the sheriff's posses began selling souvenir versions of the shorts, which come with an image of the sheriff's badge, Arpaio's signature and the words "Go Joe."

The shorts proved a hit with the public, but some posse members complained that they were doing little else besides transporting and selling the pink shorts at malls, Wal-Marts and Phoenix International Raceway. Deputies also griped that they were asked, while on duty, to transport the boxers and help collect large amounts of cash. The money was collected and counted at Director David Hendershott's Enforcement Support bureau on West Durango Street.

That money was eventually deposited with the Posse Foundation, a nonprofit organization formed in 1994 to benefit the 50 sheriff's posses. But from the start, deputies claimed that sheriff's employees and the foundation were mishandling the large amounts of cash.

Early in 1996, New Timesmade several requests for records of the pink-underwear project. The Sheriff's Office responded by handing over the Posse Foundation's ledgers. Those records showed that by March 1996 the posses had raised nearly half a million dollars.

But after New Times published an article, "Mutiny at the County,"on April 25, 1996, the Sheriff's Office and the foundation refused to turn over more records. The story showed that, despite Arpaio's claims that the posses were cost-free, the posses were actually costing the county substantial resources and money, at least several hundred thousand dollars a year. Additional requests for financial information made by New Times in 1996 and 1997 were also refused.

Last November, Tom Bearup, who had once been Arpaio's most-trusted political aide, spoke publicly about the turmoil the posses' activities had caused in the Sheriff's Office. Bearup confirmed that deputies questioned the role of Hendershott and his employees in transporting and storing large amounts of cash before it was accounted for by the Posse Foundation. Twice, Bearup says, he voiced those concerns to Arpaio. Both times, Arpaio dismissed Bearup's complaints and refused to investigate.

Bearup also accused Arpaio of using the posses for political ends. He contends Arpaio is in full control of the posses, even though the sheriff says the organizations are independent.

Sun City West posse commander Don Shorg found out just how independent the posses are when he argued that, as a volunteer organization, the posse should make its own decisions. Shorg refused to send members downtown for a public relations "Joe Show," and Arpaio fired him.

The Posse Foundation's former treasurer, Alan Wilson, meanwhile, admitted to New Timesthat handling of large amounts of underwear cash had been questioned by board members who ordered an audit. After the audit, the foundation suspected that several thousand dollars were missing.

In its lawsuit, New Timescontended that the sheriff's extensive involvement in the Posse Foundation and in the pink-underwear project made records of the project public. Arizona's public records law says that "all officers and public bodies shall maintain all records reasonably necessary or appropriate to maintain an accurate knowledge of their official activities."

Arpaio's attorneys responded that the sheriff had no control over the posses or the foundation, and that deputies had no involvement in selling or transporting underwear and funds.

Depositions taken in the case showed otherwise. After swearing in an affidavit that he had never transported or sold pink underwear, Hendershott admitted under oath that he had done both. Other sheriff's employees and posse members testified that the intertwining of organizations was extensive:

* Not only was pink underwear stored and sold from county offices at West Durango Street, but the supposedly private Posse Foundation listed a county-owned sheriff's facility as its official address.

* Underwear was until recently sold by sheriff's employees at both the West Durango and downtown sheriff's offices.

* This practice only stopped, testified Lieutenant Frank Munnell, after Hendershott became concerned about "media scrutiny."

* Hendershott's name was on purchase orders of underwear.

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