Tom Horne and His Office's Possible Conflict in Redistricting Probe

In this week's column, I addressed the claims of Arizona Tea Party members, and some Republicans, concerning the Arizona Independent Redistricting Commission

One of these claims is that the AIRC may have violated Arizona's open meetings law, as well as state procurement procedures in the pick of the commission's mapping consultant Strategic Telemetry.

Given space constraints in the print version, I was only able to mention in passing the possible conflict Arizona Attorney General Tom Horne's office has with its recently announced "initial investigation" of the AIRC based on the kvetches of the Tea Party and its fellow travelers.

Last week, the AG released a statement noting that these complaints "raise questions about the Commission's compliance with Arizona's open meetings law and procurement laws when it recently entered into a contract with Strategic Telemetry to provide mapping consultant services."

Horne was quoted as stating, "I am concerned about reports that have raised questions about some of the procedural actions taken by the commission, and I am committed to finding out whether those concerns warrant any further investigation. If this initial investigation finds that laws have been violated, we will proceed accordingly."

Which, as I point out in this week's column, is curious considering that two lawyers from the Arizona Attorney General's Office advised the AIRC earlier this year, specifically, Assistant Attorney General James Barton and Assistant Attorney General Christopher Munns. This was before the AIRC hired its own attorneys in May.

I spoke with General Horne about this apparent conflict, because, as he's well aware, his 2010 Republican primary opponent, ex-Maricopa County Attorney Andrew Thomas, is in trouble with the State Bar of Arizona for, among other things, investigating the county Board of Supervisors, even though the County Attorney is the board's lawyer.

Thomas and his former henchwoman and deputy county attorney Lisa Aubuchon are currently facing disbarment proceedings over this alleged violation and many others.

But Horne told me that the AG's office had researched the matter and concluded that no conflict exists in the AIRC probe.

"The relevant rule [from the State Bar's Rules of Professional Conduct] is 1.9(a)," he stated. "It refers to prior clients. They [the AIRC] were a client until they selected their lawyers, and then we were no longer their attorney. Nothing that we're investigating pertains to the period preceding when they hired their own lawyers."

He continued, "The ethical rule refers to prior clients and it says obviously that you can't be adverse to them on the same transaction or substantially related transactions. Then in section b, it defines what a substantially related transaction. It says if there is a risk of disclosure of confidential information in a prior representation, then you can't accept representation. Otherwise you can."

Horne explained that his ethics attorney concluded that the AG's office could do the investigation, walling off the lawyers who originally advised the AIRC from it. 

You can read the rule Horne references above, here.

Thomas is under the gun for having violated a different rule, 1.7(a), which prohibits conflicts involving current clients. So this situation is a little different, though similar in some respects. 

And of course, Thomas has a laundry list of other alleged violations, as I've mentioned.

Thing is, the issues on which the Assistant Attorneys General advised the AIRC appear to relate to the very matters under investigation.

For instance on March 9, Barton answered questions from the commissioners regarding open meetings law. And on March 24, his colleague Munns gave commissioners a training on open meetings law.

Also, according to the March 31 minutes of the AIRC, Barton gave direct advice regarding procurements.

The minutes read:

"As to the question of if the Commission is required to follow the State Procurement Code, Mr. Barton said the law is unclear. However, his suggestion is that as good stewards they do so. Any further discussion along  this line should be held in Executive Session should the Commission desire. There was no further discussion."

Barton was also present on April 8 when the AIRC voted to go into executive session to discuss the RFP (Request for Proposal) to which potential mapping consultants would be responding. 

He was present on April 14 when the AIRC went into executive session to discuss legal issues concerning a public records request. On April 20, Barton was there when the AIRC went into executive session to discuss hiring an executive director. 

He was also there on May 3 when the commission went behind closed doors to discuss the RFP. And again on May 10, 12 and 13.

At that May 13 meeting is when the AIRC selected the two firms that now represent it, Ballard Spahr and Osborn Maledon.

When he spoke to me, Horne stressed that his intentions were good, that he merely wanted to clear the air over the supposed controversy.

"I never intended to intimidate anybody," he explained of the probe. "My intent is that there are a lot of questions raised in the public. And if nothing done was wrong and we can clear it up, then that will be to the benefit both to the commission and the public perception of the process."

Maybe. The possible problem I foresee is that however the AG's investigation turns out, there's likely to be a faction or an interested party that doesn't like it. And that faction may exploit a perceived or actual conflict to its advantage, either in litigation or spin or both.

And at that point, we all may wish that Horne never felt the need to placate the Tea Party, and the self-serving politicians that cater to it.


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