The Maricopa County Sheriff's Office and its posses appear to be violating the Arizona Public Records Law by refusing to disclose information about how they handle hundreds of thousands of dollars.
For more than a year, Sheriff Joe Arpaio's 49 separate volunteer posses have raised funds by selling souvenir pink boxer shorts emblazoned with a likeness of a badge and the words "Go Joe." Proceeds from those sales, as well as the costs of producing new batches of the underwear, have been handled by the Posse Foundation, a nonprofit organization incorporated in 1995.
Although the money is being raised under the supervision of the Sheriff's Office--pink underwear and its proceeds are processed through the Enforcement Support Division--the sheriff and his posses refuse to turn over records of how much money has been raised and how it has been spent.
Arpaio claims that since his posses are independent, nonprofit organizations, their records are not subject to the Arizona Public Records Law.
But in a computer search at the Arizona Corporation Commission, less than half of the sheriff's posses turned up as active, nonprofit corporations. The rest could not be found at all. And according to public records experts, as well as the office of the attorney general, if a source of money has been handled by public employees at any time, then the Public Records Law does apply to records of those funds. If the Sheriff's Office has any control over pink-underwear money, says Grant Woods' spokeswoman, Karie Dozer, then the posses must turn their records over to New Times.
And the Sheriff's Office does appear to have control over those funds.
Pink-underwear money is only raised under the supervision of sheriff's employees. Posse members have no authorization to perform any duties on their own, a rule that contradicts their claims that they are independent entities. In fact, one posse leader was fired recently when he repeatedly defied Arpaio directives and claimed that the posses were independent, nonprofit volunteer organizations.
Earlier articles by New Times have also shown that, far from being the no-cost volunteer organizations that Arpaio claims, the posses are actually a serious drain on the Sheriff's Office in ammunition costs and resources for training ("Mutiny at the County," April 25). Training of posse men and women is overseen by sworn personnel, posse field programs are supervised by paid deputies, and posse members raise money while under orders of Sheriff's Office employees.
What's done with that money is also under control of the Sheriff's Office. Several posse commanders tell New Times that when they need money for their projects, they have been instructed to call Sergeant Brian Sands of the Sheriff's Office Enforcement Support Division. Sands, a public employee, reportedly doles out the money to individual posses.
Encountered at a recent concert where posse members were providing security, Sands was asked if it were true he had control over the money that the Sheriff's Office claims is privately raised by posses. Sands replied that yes, the posses could request "grants" from him.
When he was asked if it was the Posse Foundation which was, in fact, supposed to be handling the money brought in by pink-underwear sales, Sergeant Frank Munnell, another posse overseer, jumped in to respond. The posses aren't sent cash when they need it, Munnell said. Instead, he explained, when posses need funds, the Enforcement Support Division ships them over a pile of pink boxers which they can then sell for the proceeds.
Neither Sands nor Munnell denied that the Sheriff's Office controls the flow of posse merchandise or cash.
The Posse Foundation last provided New Times with a detailed ledger of its activities in February. It refuses to do so now, saying that as a nonprofit organization the foundation is required only to submit an annual report to the state Corporation Commission--which may not be available until well into 1997.
According to the records available in February, the posses had raked in $417,269 in pink-underwear sales. And that's after selling its first pair only four months earlier, in October 1995. Despite that phenomenal volume, however, Allen Wilson of the foundation says that today, nine months after hitting the $400,000 mark, sales have only reached about $500,000. "Sales over the summer were slow," he tells New Times.
At a recent Roadrunners hockey game, however, posse members were doing a brisk business of both pink boxers and their most recent marketing brainstorm: pink tee shirts. Sheriff Arpaio himself showed up with the players of a posse-sponsored youth baseball team. The baseball players fanned out over the rink and threw pairs of the pink boxers into the stands as Arpaio slipped and fell on the ice. The crowd roared its appreciation.
Sheriff Arpaio has said that funds raised by his posses will be used to offset the costs incurred in its various missions. He suggests in his book America's Toughest Sheriff that if the posse could raise "a couple of million dollars," it could pay what taxpayers do today: the labor costs of deputies who supervise posse activities.
But of the $417,269 raised before the Posse Foundation stopped releasing records, only $3,692.78 was spent to reimburse the county for the costs of posse operations. Nearly twice as much was spent for a newspaper advertisement which admonished out-of-town visitors during Super Bowl week not to commit crimes. The ad was widely viewed as more of a political stunt than a crime deterrent.
Arpaio denies that the posse is politically expedient, and tells New Times that he couldn't use pink-underwear money politically even if he wanted to. Still, his office refuses to turn over records of the funds.
Several weeks ago, after being advised that the Sheriff's Office had no control over the posses, New Times sent out formal, boilerplate requests to the commanders of each of the 49 active posses, asking for access to their general ledgers and citing the Arizona Public Records Law. Only ten of the posses have responded, and they refused to turn over their records on the grounds that the Public Records Law doesn't apply to them.
Posse commanders such as Sun City West's Robert Sysum tell New Times that their organizations operate on donations, not from money sent by the Sheriff's Office. "Our Board," Sysum writes, "felt that money donated by our Citizens should be carefully supervised . . . in fact, we assess our self annual dues to pay for the coffee and donuts at our General Meetings."
Ed Lacki, commander of New River's search-and-rescue posse, says he wouldn't turn over records to New Times even if he had them. Which he doesn't, he admits. "All of our expenditures were done on a cash basis by our members," he writes.
Other posses were apparently even more perturbed that New Times asked to see their records. "If supplying you with any information had ever been an option, the threatening tone of your letter would have voided cooperation. Take your witch hunt and sit on it," writes Jack Anderson, former commander of the Gilbert Southside Mounted Posse.
Sun Lakes Posse commander Bob Raich, meanwhile, threatened to sue New Times if it ever again attempted to see posse records.
Bill FitzGerald, a spokesman for County Attorney Richard Romley, says his office has not been asked for an opinion on the matter, and has no plans to look into it.
The posses, however, may find that their involvement with the Sheriff's Office will require that they be more open.
First Amendment lawyer Dan Barr finds it hard to believe the posses can make a case that they receive no assistance from the Sheriff's Office.
"Even if [the Sheriff's Office] doesn't have control of the money, if a private entity gets any public money at all, then that private entity becomes public under the definition of the Public Records Law," Barr says.
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And Barr agrees that if posse funds are collected under the authorization and supervision of public employees, and are distributed by public employees, they qualify as public funds.
The Sheriff's Office disagrees, saying the posses can maintain a private status while dressing up as, and appearing to do the work of, public officials.
"They can't have it both ways," Barr says. "What happens when a posse man flashes his badge and says 'Stop'? Can we walk away? I would have to believe the sheriff would say no.