Tepid Response Force
The same day Richard Romley announced he would seek reelection as Maricopa County attorney, one of his subordinates was looking into a case that may prove to be an election-year headache.
After New Times reported that Maricopa County Sheriff Joe Arpaio had used public funds to hire outside counsel ("Joe Enhancement Fund," February 8), Romley sent an aide, Joe Duke, to look into the allegations. Duke, head of the county attorney's civil division, reported that Arpaio's expenditures appeared "questionable," and recommended that they be examined further.
Romley responded by asking the state auditor general to examine Sheriff Arpaio's books--something the auditor general was scheduled to do this year, anyway.
If the county attorney is reluctant to look into the allegations on his own, there's good reason. Arpaio's payments of public money to his attorney appear to violate several state laws and, if done knowingly, could result in prison time. But the last thing Romley needs now is a fight with the celebrated lawman. Just ask Romley's special assistant, Barnett Lotstein:
"Rick Romley, he's running for election this year. There's no political percentage in Rick Romley getting into a controversy with Joe Arpaio. I mean, that's not to his advantage," Lotstein tells New Times.
Lotstein says Romley would prosecute the case only after another agency has found evidence of wrongdoing. In cases of white-collar crime, he insists, the county attorney lets others do the investigating.
Despite this, Lotstein talks as though Romley were actually investigating the sheriff. "This matter is being looked at because that's what we do," Lotstein says. "[Romley] doesn't duck the tough issues. We do our job. And if there's criticism from wherever, then so be it. We're just going to do our job."
Arpaio sued the Maricopa County Board of Supervisors in 1994 after it cut his 1994-95 budget by $5.1 million; Arpaio challenged the constitutionality of the board's authority. When the board refused to supply Arpaio with a county-paid lawyer, Arpaio obtained the services of an outside attorney.
That attorney was Robert Yen, a lawyer who works year-round for the Maricopa County Deputies Association, a fraternal organization funded by deputies' dues. Arpaio vowed that Yen would be paid by Deputies Association money and not public funds.
When Arpaio broke that promise, he apparently also broke the law.
Arizona public officials must follow strict rules when they use taxpayer money to obtainoutside legal counsel. First, they must seek the attorney general's approval of whomthey've chosen to represent them. And second, they have to follow state procurement laws which oversee the awarding of contracts.
Arpaio failed to get the attorney general's approval to hire Yen. He also failed to seek competitive bids for the job or to file "sole source" justification for not seeking bids.
Violating the state procurement laws could make Arpaio liable for the amount of public money he paid Yen, $39,350, plus a 20 percent penalty and legal fees.
But if the county attorney or state attorney general--both have jurisdiction in such a case--can prove that Arpaio violated these procurement laws knowingly, the sheriff could get a taste of those green bologna sandwiches he's so proud of. Knowingly violating the state procurement code is a Class 4 felony, which carries a possible four-year prison term and up to $150,000 in fines.
Building such a case would be political dynamite for whichever agency takes it on. On the other hand, ignoring the job will be difficult, given the facts that such a case could be built from.
There's Arpaio's questionable explanations about the chronology of events, for example. Even after New Times obtained a copy of the July 18, 1994, letter in which Arpaio asks a state official about the appropriateness of paying Yen with jail-enhancement funds, Arpaio still insists that he never looked into that possibility until much later in the year. Arpaio claims he sought the state official's approval to spend the public funds after he had publicly vowed in September 1994 not to use taxpayer money.
That state official is Larry Beddome, the Department of Corrections' intergovernmental liaison. Arpaio, like every other sheriff in Arizona, consults with Beddome about uses of the jail-enhancement fund, which is money collected from fines on traffic violations and other infractions. It is set aside specifically for the improvement of Arizona's jails.
There seems to be little state oversight of jail-enhancement funds. A spokesman for the auditor general says that sheriffs are audited only every three years, and that jail-enhancement funds are not always examined.
With Beddome's assurance that he wouldn't oppose Arpaio's plan, the sheriff began dipping into the jail-enhancement fund to pay Yen on December 15, 1994.
How he doled out those payments might interest investigators.
Until July 1, 1993, contracts worth less than $10,000 were not subject to the sealed bidding process.
After July 1, 1993, however, that limit was raised to $25,000. Next year, the threshold will once again be set at $10,000. What remained constant while the state Legislature tinkered with the limits, however, was a requirement that contracts could not be paid in piecemeal fashion in order to bypass the procurement process. In other words, a large contract could not be divided into smaller payments to avoid the bid process.
Yen was paid $39,350 in jail-enhancement funds in four checks, each between $9,500 and $9,950. If Arpaio, still thinking that theminimum for bidded contracts was $10,000, purposely broke up this aggregate amount to avoid the bidding process, he could be found in violation of this portion of the law.
There are other exceptions under which a $39,350 expenditure might be exempt from the bidding process, but they apply only to special cases involving particular state agencies, such as the state lottery, and not to a county sheriff.
Still, Arpaio might have been exempt in this case if he'd claimed that it was a "sole source" contract. But he didn't file the proper paperwork for such an action.
The sheriff remains defiant. He denies that the Maricopa County Deputies Association was used as a front to make payments to Yen until he could quietly begin tapping the public funds. But he refuses to say how much the association paid Yen.
Yen and the Deputies Association also have declined to provide those records, saying that isolating the payments made on Arpaio's case from the work that Yen regularly does for the association would be prohibitively time-consuming.
Meanwhile, although it is not pursuing an investigation, the County Attorney's Office acts as though it was.
"Joe Arpaio for the most part does a fine job as sheriff. We're not complaining about Joe Arpaio the sheriff at all," says Lotstein. "I've known Joe Arpaio for 20 years. He's the sheriff. He does sheriff stuff. But he's also an elected public official who has an obligation just like every other public official to obey the law, to follow the rules. Merely because you're a popular public official doesn't relieve you of that responsibility."
Arpaio himself responded to the controversy by announcing this past weekend that he would be running for reelection--something he had promised not to do.
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