Robert Sparks, the hearing officer overseeing fired sheriff's deputy Joel Fox's appeal, is worried that he's out of his league in the complex case.
This isn't an average appeal for the job of an average county worker who was fired, of course -- it's about a scandal and cover-up that reaches right up to the desk of Maricopa County Sheriff Joe Arpaio. The allegations involved in the SCA campaign-finance scheme include obstruction of justice, witness tampering, money laundering, fraud and violations of campaign-finance law.
The Arizona U.S. Attorney's Office is apparently still looking at potential charges in the case against Fox and others. That possibility caused Sparks to halt the multi-day appeal hearings temporarily last month. The hearings resumed on February 29th without resolving the question.
At the most recent hearing in the case, on March 2, Sparks was visibly exasperated on several occasions. When a possible snag arose related to the use of secret recordings made by Deputy Chief Frank Munnell, the MCSO whistle-blower whose allegations helped lead to Fox's firing, Sparks said he was "nervous" about exceeding his responsibilities as a hearing officer.
"My job in this context is getting more and more difficult because of the barriers that keep popping up," Sparks told the parties in the case. "We are treading on many different fronts."
Sparks, a Phoenix attorney on contract as a county hearing officer, said he doesn't want to "charge ahead" on the questionable matters because of possible adverse consequences. He may need a "higher authority" to weigh in on the case, he said.
Besides the worries about the secret recordings, Sparks also mentioned that he was concerned about testimony that might be protected by grand-jury secrecy rules. Earlier in the day, state criminal investigator Meg Hinchey told Fox's lawyer, Ed Moriarity, that she couldn't answer a question because it related to grand-jury matters.
In response to another question, Hinchey said she did not know if she was authorized to disclose exactly who delivered transcripts of the secret recordings to the AG's office. Sparks told attorneys for Fox and the county that he wasn't sure if he had the authority to compel Hinchey to answer that or similar questions, because such an order might interfere with the probable ongoing criminal investigation.
Moriarity, the same lawyer who defended former deputy county attorney Lisa Aubuchon in her fight with former County Attorney Andrew Thomas over allegations of ethical violations, is trying to exploit every angle in his bid to overturn the decision to fire Fox.
Moriarity questioned the origins of the secret recordings, (the transcripts of which can be found in the AG's report on the SCA matter here. One was a recording Munnell made in fired Chief Deputy Dave Hendershott's office, the other in a staff meeting attended by Arpaio.
But the main problem Moriarity identified was that the Sheriff's Office apparently has a policy that prohibits such secret recordings, even if they're allowed under state law. (In Arizona, it's legal to record a conversation between two or more people as long as one of the parties in the conversation knows the tape is rolling.)
The County Attorney's Office, which is defending the Arpaio's office against Fox's appeal, should have "had the Sheriff's Office looked at for disciplinary action" as soon as it learned about the secret recordings, Moriarity asserted. He added in response to a questions from Sparks that he would present the county's policy against secret recordings at a later date.
"If obtained in violation of policies, that has a bearing on how much weight should be given" to the recordings and associated transcripts, Sparks said. The law likely requires the county government to follow its own rules, he noted.
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Sparks told Clarisse McCormick, the deputy county attorney leading the defense for the Sheriff's Office, that she was going to have to "cull out" some of the information gleaned from the recordings until the matter was settled.
We reached Sparks this evening to ask about his concerns, but he declined comment.
Testimony was supposed to resume on Monday, but the problems in the case have spurred a revised schedule that will be released next week.