"Appearance of Evil" Requires Personal Sanctions Against County Attorney Andrew Thomas, Say County Supervisors
A conflict of interest between Maricopa County Attorney Andrew Thomas and the county Board of Supervisors over the investigation of a planned court tower creates the "appearance of evil," a judge has ruled.
|Judge Gary Donahoe|
In the midst of a feud with the County Supervisors, Thomas and Sheriff Joe Arpaio began investigating alleged crimes by county officials related to the planning of the proposed $340 million court tower. Neither politician has said publicly what those crimes might be, but in December, Thomas obtained a grand jury subpoena for county records relating to the court tower.
The problem for Thomas is that his office had provided legal assistance to the county during the preparation of the court tower proposal. That fact spurred the county to file motions to kick Thomas off the investigation entirely and quash the grand jury subpoena.
Donahoe agreed with the county in all matters and removed Thomas from the case, saying an "appearance of evil" exists in the conflict:
It strikes this Court that any rationally thinking person would likely conclude that it appears improper for adversaries in a court proceeding to have the same lawyer.
The development is tough one for Thomas, who has been arguing for months that it's not a conflict of interest for him to prosecute County Supervisor Don Stapley for alleged campaign finance form violations. That argument appears as thin as a paper straw at this point.
The court tower case is another high-profile loss for Thomas' attempted heavy hitter, Lisa Aubuchon, who is also working on the Stapley criminal case. She was recently scolded by another judge for a Stapley matter. And Thomas also lost his bid to stop the county from setting up its own civil litigation department, which it swiped from his office following the Stapley indictment.
It appears that the courts hold all the trump cards -- and Thomas loses more ground with each ruling.
Below, you can read the county's long news release about the latest ruling, followed by a joint statement from Arpaio and Thomas:
THOMAS DISQUALIFIED FROM CRIMINAL INVESTIGATION;
COURT RULES CONFLICTS HAVE "APPEARANCE OF EVIL"
· Andrew Thomas' office disqualified from conducting court tower investigation
· Court says MCAO's issuance of grand jury subpoena was improper and constituted conflict of interest with its client, the Maricopa County Board of Supervisors
· Court states: "Board is entitled to obtain legal advice from lawyers who do not have a conflict of interest"
· Chairman Max Wilson calls on Thomas to change his behavior or "let someone else do the job."
March 31, 2009
Maricopa County Attorney Andrew Thomas has been disqualified from a grand jury criminal investigation because of an impermissible conflict of interest, previously sealed court documents reveal.
Maricopa Superior Court Presiding Criminal Court Judge Gary E. Donahoe booted Thomas from the case on Feb. 9 because the county attorney was investigating an issue, the proposed downtown criminal court tower, that his office, including a top deputy, had given legal advice on.
In the strongly-worded ruling, Judge Donahoe sided with the county administration on all issues, even describing the county attorney's actions as having "the appearance of evil."
"This Court finds that the Maricopa County Attorney's Office has a conflict of interest that disqualifies it from conducting an investigation of its client on the very topic on which it gave legal advice to its client," Donahoe wrote.
Donahoe relied on a 1972 Arizona Supreme Court opinion that noted knowledge held by one member of the county attorney's office is tantamount to knowledge by all in the office and that "public confidence in our judicial system may be undermined if the appearance of evil, as well as the evil itself, is not avoided."
In his ruling, Donahoe declared: "Here, the same appearance of evil is present. The Board will never believe that confidences about the court tower it shared with members of the Maricopa County Attorney's Office in executive sessions, other meetings and, perhaps in the sought-after correspondence and e-mails, will not be divulged to the deputy county attorneys involved in this investigation."
Board Chairman Max Wilson praised county officials. "The County Manager and his staff have handled this situation with professionalism, courage and fortitude," he said. "I want to thank all the good and decent county employees who have worked for the benefit of the taxpayers while having knots in their stomachs, being subject to this type of harassment. These public servants are heroes."
"I call on the county attorney to change his behavior. Be a lawyer without conflict or let someone else do the job," Wilson said.
Smith said the ruling vindicated both the court tower project and the board's recent actions in seeking alternative legal counsel. "The court tower project is the cleanest public works project I have seen in decades. Using it for this purpose is outrageous," Smith said. "From the beginning of the criminal court tower project, Deputy County Attorneys had provided legal advice on every aspect of the project, every contract and procurement," Smith said.
"The Court acted quickly and with wisdom in dealing with, in the words of the Judge, this appearance of evil," Tom Irvine, the board's private counsel, said of the ruling. "Any criticism of the Superior Court is just another misguided diversionary tactic that adds to the 'appearance of evil.'"
"The board of supervisors has been supportive of both the sheriff and the county attorney in the past," Supervisor Fulton Brock commented. "And yet, after years of demonstrated public support and responsible governance, the board and county administration have been met with politically motivated conflict."
The conflict issue is the same point Maricopa County supervisors noted when they created a new general litigation department earlier this month and began an investigation into Thomas' conflicts last year. On March 19, Judge Donald Daughton denied the County Attorney's efforts to derail the board's general litigation Department.
The supervisors had to fight in Court to make the ruling public. "The Board of Supervisors and our staff were muzzled by the grand jury secrecy statute throughout this terrible ordeal," commented supervisor Mary Rose Wilcox. "When we learned of the ruling, we had to fight to make it public."
BACKGROUND INFORMATION ON THE CONTEXT OF THE COURT'S RULING
Court Tower Project:
The board has authorized building a new criminal courthouse in downtown Phoenix to deal with the ever increasing criminal case load. "Maricopa County set aside money during the good times in order to be able to build this important public safety facility without raising taxes," Smith said.
Grand Jury Subpoena Was Seven Days After Board Commenced Investigation into Thomas:
On Dec. 12, the county attorney's office served a grand jury subpoena on Maricopa County officials seeking all records related to the court tower. The now defunct subpoena was served seven days after the Board of Supervisors voted, on Dec. 5, to inquire into any ethical conflicts that County Attorney Andrew Thomas and his office might have with their own clients.
Motion to Quash and Motion to Make Public the Ruling re the Grand Jury Subpoena:
Private lawyers for Maricopa County then moved to quash the subpoena and to disqualify the County Attorney from any such investigation. Since grand jury proceedings in Arizona are secret, the investigation, the subpoena and the motion to quash were all under seal and known only to the lawyers and parties involved. The ruling became public last Friday at 5 p.m. Also attached is Judge Donahoe's March 23 Ruling and Order which lifted the veil of grand jury secrecy.
Court Tower Project Designed to Improve Public Safety and Avoid a Tax Increase:
Recently, Gov. Jan Brewer called for the State to act more like counties in saving up for big projects. "If we use the money for the criminal court tower to cut our budget less this year, we will have to cut our budget more next year and raise taxes when we run out of criminal courtrooms," Smith remarked. "The Board is committed to a structurally balanced budget and to not taking actions that will harm public safety and cause future tax increases," Smith stated.
End County news release -- now for the Thomas and Arpaio release:
March 27, 2009
Maricopa County Sheriff Joe Arpaio, Maricopa County Attorney Andrew Thomas: Grand Jury investigation of $340,000,000 Court Tower thwarted
"We are very concerned that the Superior Court, by disregarding the rulings of higher courts, has blocked an important grand-jury investigation of itself and its own employees. This is surely a conflict of interest by the court itself if there ever was one. This ruling has been appealed to the same higher courts that have already upheld such investigations and prosecutions.
Important questions have arisen regarding the funding and contracts for the new $340 million-dollar court tower. This ruling suggests county and court officials believe they don't have to answer these questions. We believe they should and the public has a right to know."
Sheriff Arpaio adds, "I want the taxpayers of Maricopa County to know that these unjust actions against the County Attorney will not deter the Sheriff's Office investigation and we will move forward with a vigorous investigation of the court tower as well as our other corruption cases."
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