Special prosecutor investigating Maricopa County Recorder employees

This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access. Sign up for Votebeat Arizona’s free newsletter here.

With mere weeks until voting begins in a high-stakes primary election, a long-standing disagreement over election control in Maricopa County is only getting more combative.

In a new twist of the feud, a special prosecutor is looking into whether employees in the Maricopa County Recorder’s Office broke the law by allegedly removing a scanner and provisional ballot envelopes from the county’s vote tabulation headquarters amid a local election earlier this year.

Recorder Justin Heap, a Republican, said in a recent legal filing that he wanted possession of the scanner, which he said belongs to his office — a claim that the county’s mostly-GOP board of supervisors disputed.

He also requested a court order barring any criminal prosecution of his employees related to the incident, which occurred as votes were being tallied in the March 10 election for three seats on the Tempe City Council.

Heap’s latest filing in his lawsuit with the board of supervisors raises further questions about top officials’ ability to work together to administer this year’s midterm election in the key swing county. It comes less than two months before the state primary on July 21 — and as the special prosecutor looking into the scanner incident draws close to completing his investigation.

Former Pinal County Attorney Kent Volkmer, a Republican, told Votebeat that he was tapped by the Maricopa County Attorney’s Office to investigate the matter in April. He said he’d hired an off-duty, reserve deputy with the Pinal County Sheriff’s Office to assist with the case, and that the investigation was “wrapping up.”

Erin Pellett, a spokesperson for Maricopa County Attorney Rachel Mitchell, said in a statement that Mitchell had appointed special counsel after receiving an “allegation” and determining a conflict of interest was present. As the county’s top prosecutor, Mitchell, a Republican, represents both the recorder’s office and the board of supervisors.

Volkmer declined to share many details of the investigation, noting that it still remained active. But he said the investigation wasn’t initiated to target specific employees in the recorder’s office. Rather, Volkmer said he was looking into the incident to determine “whether there was, in fact, criminal behavior.”

“This wasn’t, ‘Hey, go look at this person,’” he said. “That’s not how this came about.”

Volkmer added that it is standard practice for investigators to attempt to contact individuals who could have knowledge of a potential criminal matter.

“I would say you’re not doing your job if you don’t try,” he said, adding that he believed his investigator would be “thorough” in examining the incident.

Recorder employees and a disputed scanner

Heap said in his court motion that multiple employees from the recorder’s office had attempted to “retrieve” a scanner from the election center in March, with the intent of repurposing it to scan inbound provisional ballot envelopes.

He said the scanner belonged to his office. Heap noted it was purchased with funds from the recorder’s office and was never “lawfully transferred” to the county elections department, which is overseen by the board of supervisors. He added that the scanners were acquired specifically for early voting services, “a function under the sole authority of the recorder.”

But the board saw it differently. In a statement, Supervisors Kate Brophy McGee and Debbie Lesko said two workers — including Chief Information Officer Brian Colby, who is named in court filings as one of the employees who was later approached by an investigator — were caught on security cameras loading the piece of equipment into the back of an unmarked pickup truck on March 12. The supervisors said it appeared to be a personal vehicle.

The supervisors called the machine a “pre-tabulation” scanner and said it was controlled by the board. Furthermore, they said Colby had been notified on “at least one occasion, in an inter-office message on March 5,” that the scanner was the property of the board.

Brophy McGee and Lesko, both Republicans, said the workers returned the scanner about an hour later, after elections department staff contacted the recorder’s office about the matter.

But they said Colby also appeared to take envelopes that potentially contained live provisional ballots, creating “grave chain-of-custody concerns.” They added that a count the following day confirmed that all ballots were accounted for, and that a human resources investigation substantiated their accounting of the incident.

Later, Heap said his employees were approached at their homes by “Pinal County Sheriff’s deputies.” He said Colby was specifically told he was under investigation for theft.

Elections dispute continues to escalate

The filing adds fuel to the flames of a long-running feud within county government.

Heap has long contended that county supervisors usurped much of his power in a deal they struck with his predecessor months before he took office. He sued over the matter last year — and after months of back-and-forth in court, a court ruled largely in his favor on April 16, ordering the board to return control of several election-related functions and information technology staffers to Heap’s office.

The board unsuccessfully moved to stay that ruling, arguing it was too close to the primary to implement the court’s directives without risking a tumultuous election. Later, they filed for an appeal, which is still pending.

In the meantime, the officials have continued to butt heads.

During a May 19 local election, they argued over how to communicate a new voting option at polling sites. Emails show the recorder’s office and the board’s elections department disagreed over whether poll workers should verbally inform voters that they could opt to show identification at voting sites to have their mailed ballot counted faster.

Then, another scuffle erupted last month over ballot drop box locations for the upcoming primary. The board has set such sites for years under a provision of the state’s election rulebook, and it planned to approve the locations at a May 20 meeting. But just before the supervisors met to do so, Heap sent a letter to the board citing state statutes that he said granted his office authority over ballot drop boxes. He also warned that election workers who handle ballots deposited in “unauthorized” receptacles could face criminal penalties.

The suggestion that election workers could be charged with felonies drew strong condemnation from the supervisors. One, Democratic Supervisor Steve Gallardo, accused Heap of attempting to sabotage election operations. Ultimately, the board unanimously approved a slate of voting locations — including the drop box sites — for the primary.

Later, Heap asked a judge to hold the county board in civil contempt of court, accusing supervisors of flouting the April ruling. If supervisors failed to quickly adhere to the recent decision, he asked that the court levy substantial fines and give the money to his office.

Heap reiterated that request in his most recent filing, asking the court to set an expedited hearing on the issue in light of “these new factual developments.”

He also said the board was targeting his employees and doing “exactly what it had falsely accused the recorder of doing” amid the drop box saga last month.