Pinal County Sheriff Paul Babeu's Spokesman Not Charged in Case Involving Deleted Public Records; Prosecutors Cite Conflicting Evidence

Pinal County Sheriff Paul Babeu declared his office vindicated after the Pima County Attorney's Office declined to prosecute his director of communications over allegations that he unlawfully deleted public records.

It wasn't exactly a clean-cut victory for Babeu or his office.

A letter from the Pima County Attorney's Office dated July 10 confirms that Tim Gaffney, Babeu's spokesman, "removed thousands of emails from his personal computer archive that were responsive to the Arizona Republic's public records requests and to requests from the U.S.Office of Special Counsel and the Arizona Attorney General."

But, Pima County Attorney Barbara LaWall, writes that there was "conflicting evidence" as to whether Gaffrey knew that the Pinal County's Information Technology Department maintained duplicates of those e-mails when he wiped them from his own computer.

There is "insufficient evidence to prove beyond a reasonable doubt that Mr. Gaffney possessed the ... intent to defraud or deceive," Le Wall writes, adding that it is a "necessary and indispensable element of the crime of tampering or attempted tampering with a public record."

So, they decided not to pursue charges in the case.

Along with proclaiming victory, Babeu also lays the blame for that investigation, and others, on County Manager Fritz Behring.

Babeu says, in his statement, that the latest investigation began on March 9, "when Behring alleged Gaffney had tampered with public records, which is a class six felony.

"He alleged the employee deleted 6,402 records which were tied to pending public records requests," Babeu writes.

(LaWall's letter confirms that Gaffney did remove thousands of e-mails from his computer that were responsive to various public records requests.)

Babeu accuses Behring of using "both misleading and inaccurate facts presented as truths" to launch these investigations.

He says that the director of the county's Information Technology Department "has apologized to members of our office and told us that he was just taking orders from the County Manager on this issue."

New Times left a message for Richard Jones, a spokesman for that department, but he hasn't responded.

Babeu also claims that a Deputy County Attorney told his office that the "County Manager was not following their legal advice on this issue."

A spokesman for the sheriff's office tells New Times that out of respect for that individual, they aren't releasing his name at this time.

The Pinal County Attorney's Office, which did not investigate the case, had no comment.

In his press release, Babeu claims that Behring knew that Gaffney had been told him e-mails were archived, and then points out that policy instructs employees to delete them after they've been persevered elsewhere.

"Pinal County had a formal request from the Attorney General's Office to preserve electronic communication," Behring said in a statement released this afternoon. "When confronted with the possibility that relevant public records may have been deleted, Pinal County acted appropriately in calling for a third-party legal review of the matter."

The AG's office is investigating allegations that Babeu threatened his gay Mexican lover with deportation if he disclosed their relationship. The investigation also includes Babeu's accusations that his ex-boyfriend hacked into his campaign websites and stole Babeu's identity.

It was Babeu who called for those investigations, not Behring.

Babeu is now running for re-election.

The scandal dried up support and campaign contributions for Babeu, a once-rising star in the Republican Party, derailing his hopes to serve as a Congressman and represent an ultra-conservative, family-values constituency. In the wake of the scandal, Babeu also stepped down as co-chair of Republican presumptive nominee Mitt Romney's Arizona campaign.

This inquiry, regarding the e-mails, appears to have started with a letter from an Arizona Republic attorney on February 28 to Gaffney.

That letter requested "email and other electronic communications sent and received by Sheriff Paul Babeu, Elias Johnson and [Gaffney]."

The search for the e-mails was handed off to the Pinal County's Information Technology Department. As they searched for the e-mails, they apparently discovered a bunch of messages had been deleted while public records requests were still pending.

IT officials reportedly told the county manager, who then asked the Pinal County Attorney's Office assistance. Since the Sheriff's Office is the County Attorney's client, Pinal officials punted the case to the Pima County Attorney's Office.

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Monica Alonzo
Contact: Monica Alonzo