Superior Court Judge Rebecca Albrecht has rejected arguments that the private, nonprofit posses are so closely controlled by Arpaio that they should be subject to the state's open records law.
In October, New Times sued Arpaio, asking that Arpaio be forced to turn over posse financial records. The newspaper argued that Arpaio's control of the posses made these records public, and cited depositions of sheriff employees as well as newspaper stories that documented Arpaio's close hold on the posses and their financial dealings.
But, in a March 17 decision, Albrecht held that the posses and their fund-raising arm, the Posse Foundation, did not meet state definitions of public bodies.
The posses refuse to explain reports of irregularities in the raising of hundreds of thousands of dollars.
In 1995, Sheriff Arpaio said that theft of inmate underwear prompted him to begin dyeing male inmates' boxer shorts pink in order to save money. The sheriff contended that inmates were smuggling out boxer shorts to "sell on the street," but provided no evidence of his claim. In fact, records indicated that the jails were actually spending more on underwear for female inmates, but Arpaio did not complain about that expense. Instead, almost as soon as he began dyeing the boxer shorts, the sheriff's posses began selling souvenir versions of the shorts, which come with an image of the sheriff's badge, Arpaio's signature and the words "Go Joe."
The shorts proved a hit with the public, but some posse members complained that they were doing little else besides transporting and selling the pink shorts at malls, Wal-Marts and Phoenix International Raceway. Deputies also griped that they were asked, while on duty, to transport the boxers and help collect large amounts of cash. The money was collected and counted at Director David Hendershott's Enforcement Support bureau on West Durango Street.
That money was eventually deposited with the Posse Foundation, a nonprofit organization formed in 1994 to benefit the 50 sheriff's posses. But from the start, deputies claimed that sheriff's employees and the foundation were mishandling the large amounts of cash.
Early in 1996, New Times made several requests for records of the pink-underwear project. The Sheriff's Office responded by handing over the Posse Foundation's ledgers. Those records showed that by March 1996 the posses had raised nearly half a million dollars.
But after New Times published an article, "Mutiny at the County," on April 25, 1996, the Sheriff's Office and the foundation refused to turn over more records. The story showed that, despite Arpaio's claims that the posses were cost-free, the posses were actually costing the county substantial resources and money, at least several hundred thousand dollars a year. Additional requests for financial information made by New Times in 1996 and 1997 were also refused.
Last November, Tom Bearup, who had once been Arpaio's most-trusted political aide, spoke publicly about the turmoil the posses' activities had caused in the Sheriff's Office. Bearup confirmed that deputies questioned the role of Hendershott and his employees in transporting and storing large amounts of cash before it was accounted for by the Posse Foundation. Twice, Bearup says, he voiced those concerns to Arpaio. Both times, Arpaio dismissed Bearup's complaints and refused to investigate.
Bearup also accused Arpaio of using the posses for political ends. He contends Arpaio is in full control of the posses, even though the sheriff says the organizations are independent.
Sun City West posse commander Don Shorg found out just how independent the posses are when he argued that, as a volunteer organization, the posse should make its own decisions. Shorg refused to send members downtown for a public relations "Joe Show," and Arpaio fired him.
The Posse Foundation's former treasurer, Alan Wilson, meanwhile, admitted to New Times that handling of large amounts of underwear cash had been questioned by board members who ordered an audit. After the audit, the foundation suspected that several thousand dollars were missing.
In its lawsuit, New Times contended that the sheriff's extensive involvement in the Posse Foundation and in the pink-underwear project made records of the project public. Arizona's public records law says that "all officers and public bodies shall maintain all records reasonably necessary or appropriate to maintain an accurate knowledge of their official activities."
Arpaio's attorneys responded that the sheriff had no control over the posses or the foundation, and that deputies had no involvement in selling or transporting underwear and funds.
Depositions taken in the case showed otherwise. After swearing in an affidavit that he had never transported or sold pink underwear, Hendershott admitted under oath that he had done both. Other sheriff's employees and posse members testified that the intertwining of organizations was extensive:
* Not only was pink underwear stored and sold from county offices at West Durango Street, but the supposedly private Posse Foundation listed a county-owned sheriff's facility as its official address.
* Underwear was until recently sold by sheriff's employees at both the West Durango and downtown sheriff's offices.
* This practice only stopped, testified Lieutenant Frank Munnell, after Hendershott became concerned about "media scrutiny."
* Hendershott's name was on purchase orders of underwear.
* Posse Foundation members said that the foundation had been formed at the request of Arpaio and his aides. In his autobiography, America's Toughest Sheriff, Arpaio laid out his plans for the organization: that the posse should raise millions of dollars so that it could pay what taxpayers do today, the salaries of deputies who must oversee posse operations.
* Munnell said that the Posse Foundation ledgers turned over to New Times in early 1996--records supposedly created and maintained by volunteers with no connection to the Sheriff's Office--had in fact been prepared by Munnell himself on a county computer.
* Posse member Ed Arnold acknowledged that the Sheriff's Office was given original records of all deposits of underwear money into Posse Foundation bank accounts.
"There is no question that there is a close connection between the Sheriff and the Foundation, but that connection is insufficient to change the Foundation from a private organization to a public one," wrote Judge Albrecht in her decision. She also disagreed with New Times' arguments that Arpaio should have kept such records himself. "Arpaio . . . is not required to keep the records of the Foundation, therefore, the records are not public records of the Sheriff's office."
New Times has recently obtained additional Posse Foundation records which show that sloppy accounting methods are continuing.
Foundation board members say they're in the process of choosing an auditor to go once again through posse books to account for all of the money raised. How much they've raised, they won't say.
"This unfortunate ruling has the effect of sanctioning a slush fund of several hundred thousand dollars while keeping it hidden from public view," New Times editor Jeremy Voas said.
"The judge agreed that on-duty deputies, county facilities and county equipment were used to benefit the foundation--but that this somehow did not constitute an inappropriate expenditure of funds. She apparently believes all this stuff is cost-free. Under her thinking, any business should be able to get a sheriff's deputy in a cruiser to do its retailing. Perhaps we'll start having deputies circulate New Times."