The Cochise County Planning & Zoning Commission voted on January 8, 2014, to approve imposing city-style water rules on rural areas near the county's largest city, Sierra Vista.  The main event, outside of the voting itself, was some absolutely stupid conduct by Adam Ambrose, the appointed deputy county attorney sent to the meeting to advise the Commission about law.  Ambrose blew it.  This writeup describes the situation as of January 10, 2014.

Chairman Weissler, without asking for approval by the Commission, moved the Call To the Public from early in the meeting to late in the meeting.


That violated the Bylaws, under which 1) the Call To the Public precedes any old or new business, and that order of business may only be changed by majority consent of the Commissioners present.  See Article 4 at
http://littlebigdog.net/Don'tPushC2PAround.jpg

Appointed deputy county attorney Adam Ambrose, in conjunction with Planning Department head Beverly Wilson, let Weissler get away with it.

I had prepared a statement for the C2P which included:
.  The Cochise Water Project pays $45,000 a year to Commissioner Cervantes, and the Friends of the San Pedro River pays Commissioner Weissler's husband $45,000 a year.  Both the Project and the Friends advocate the water proposal on today's agenda.
.  The risk of conflict of interest when private groups pay public servants is recognized by the US Supreme Court, every state, and Arizona's Supreme Court and Attorney General.  In Arizona, a public servant who's an UNPAID director of a nonprofit group has no conflict.  UNPAID.  Not paid $45,000 a year, either directly or to a spouse.
.  When conflict appears, a public servant should disqualify herself from voting on the issue.  Not voting includes not discussing. Free speech is not an issue.  Supreme Court Justice Scalia has made it very clear that the first amendment doesn't apply to members of public bodies, because their power to vote and speak at meetings is not their personal property, it's on loan from the public.
.  On paper, these two commissioners appear susceptible to financial pressure from advocates of the water proposal.  They were both named to the Commission by Supervisor Call, who supports the water proposal, and is one step over Mr. Cervantes at the Water Project.  And Mr. Weissler has said that funding for the Water Project and the Friends comes from Walton funds.
.  In fact, there's been the appearance of susceptibility to financial pressure.  In November, only these 2 commissioners voted to pass the water proposal right then, no more discussion.  The 6 other Commissioners present voted for more discussion.
.  The appearance of conflict of interest should be acknowledged and remedied.  All of us can be influenced by money without realizing it.  To remove any appearance or possibility of such influence, Commissioners Weissler and Cervantes should not discuss or vote on the water proposal.  That's the honorable action, one they can be proud of, that'll show their fitness for leadership on the Commission.

That statement might have made a difference, if made before the vote.  But Weissler's illegal move stopped it from being read before the vote.

The next day, I emailed a complaint to the County Attorney.  Here it is, in full:
.  "How about sending a deputy attorney to advise the County Planning & Zoning Commission who knows the Commission Bylaws?  Your deputy Adam Ambrose really messed up last night's meeting.
.  "I've posted one page of the Commission Bylaws at
.     http://littlebigdog.net/Don'tPushC2PAround.jpg
Notice that Article 4 puts the Call To the Public before any old or new business, and says 'The above order of presenting new business may be changed ... by majority consent of the Commissioners present.'
.  "Despite that, at the beginning of the meeting, the chair announced that she was delaying the Call To the Public back until after new business was concluded.  Ambrose said nothing upon hearing that.  A break in the meeting occurred to adjust the sound level of the PA system. During the break, I asked Ambrose why he didn't advise the Chair to follow the Bylaws' requirement for a Commission vote before moving the Call To the Public.  Ambrose said he didn't remember the Bylaws but thought the Chair could do it.  I asked if he would look at the Bylaws.  A Planning Department employee handed Ambrose a copy of the Bylaws, and told him to look where she had marked Article 5.3.
.  "As you see, Article 5.3 says that in discussing an individual agenda item, the order is 'subject to the discretion of the Chair.'  Of course that is not the same subject as Article 4, 'Order Of Business,' which requires a majority vote to change the order of items on the agenda. However, Ambrose simply relied on the employee's advice.  He did not take any note that she was referring to a different subject entirely, and he did not try to find the article that does govern the order of business at a meeting -- Article 4, just up the page from Article 5.3.
.  "In effect, Ambrose let the employee be his legal advisor.  If your deputy is going to take legal advice from non-lawyer employees, why send a deputy over at all?  Or, since you are required to send a deputy over, why not send one who knows the Bylaws of the commission that he is will advise, and who actually reads the Bylaws when a question comes up whose answer he does not remember?
.  "Please let me know any steps you take to ensure that Ambrose does his job from now on."

Rheinheimer answered "I have discussed your e-mailed complaint (below) with Mr. Ambrose and am forwarding his response to your concerns.  I am satisfied that his analysis of the requirements of the by-laws is correct.  Thank you for bringing this to my attention."  Here's the letter from Ambrose that Rheinheimer forwarded:
.  "Following are my comments on concerns expressed by Michael Jackson concerning action taken by the Chair of the County Planning and Zoning Commission Wednesday night to unilaterally move the 'Call to the Public' agenda item without first putting the matter to a vote by the full Commission:
.  "On review of the Bylaws and Rules of Procedure for County Planning and Zoning Commission, I believe it is probably the better course of action as a matter of parliamentary procedure to have any change of order of business be made by majority consent of the full Commission, but I don't believe that the chair's action in unilaterally moving the 'call to the public' from the third item to the eighth item of business at the commission's Jan. 8 meeting was necessarily in violation of those bylaws, as Mr. Jackson has alleged.
.  "As Mr. Jackson correctly points out, the bylaws, at Article 4, which provides a presumptive sequence of business, states that "[t]he above order of presenting new business may be changed to accommodate persons to be heard on matters for consideration before the Commission by majority consent of the Commissioners present."  But this must be read in conjunction with Article 3, Section 11, which establishes that all of the terms of the bylaws are "subject to interpretation by the Chair."  Article 3, Section 11.
.  "It would be a reasonable and defensible reading of these bylaws to conclude that the Chair had discretion to construe the above quoted language from Article 4 to provide for a majority vote of the Commission only when the order of business was changed at the request of a presenter, 'to accommodate persons to be heard on matters for consideration the Commission,' and for the Chair to further conclude that that restriction did not apply when the change was merely for other reasons.
.  "In this case one such 'other reason' the Chair could have decided to make the change could have been to assure that public comments that pertained to individual items on that night's agenda and that would otherwise be made at a call to the public could be made and responded to immediately by commission members at the time that the agenda item they pertained to was under consideration.
.  "Yet another 'other reason' for the Chair to have made this change in this case could have been to assure that the 'Call to the Public' was not placed ahead of the 'Approval of Previous Month's Minutes,' as it had been on that night's agenda, because such placement would in fact have constituted a violation of the order of business specified in Article 4 of the bylaws.
.  "Further supporting this reading of the scope of the Chair's discretion on this point, the language of Article 4 is permissive and not mandatory.  It does not declare that the Chair must obtain the consent of a majority of the Commission in all cases, but only that the Chair 'may' do so.
.  "While I appreciate Mr. Jackson's observations and I do agree that it would be preferable in future for the Chair to call for a vote of the Commission before changing the order of business, I believe it would be a misreading of both the letter and the spirit of those bylaws to conclude that the action taken by the Chair on Wednesday night was either improper or illegal, especially in light of the provisions of Article 5, Section 3, which expressly gives the Chair broad discretion to change the order of presentation of individually docketed agenda items."

Here's how I replied to Rheinheimer:
.  "Let me note that you have, in your covering sentence ('I am satisfied that his analysis of the requirements of the by-laws is correct') ignored a major problem.  Public bodies won't be helped if you send advising deputies who make errors during meetings but can generate excuses the next day.  You need to send attorneys who get it right during meetings.
.  "Last night, Mr. Ambrose's response to my question about changing the order of agenda items was first to say that he didn't remember what the Bylaws said, then to take legal advice from a county employee who pointed to an inapplicable Bylaw, then to lose his temper and tell me that I had no authority at this meeting, and to go sit down.  His arguments ignore his rudeness at the meeting, and are worthless, makeshift excuses for his advice.
.  "Now to a discussion quoting AMBROSE paragraph by paragraph, with each paragraph followed by comments from ME [references to format of emails omitted.]
.  "AMBROSE 1, As Mr. Jackson correctly points out, the bylaws, at Article 4, which provides a presumptive sequence of business, states that '[t]he above order of presenting new business may be changed to accommodate persons to be heard on matters for consideration before the Commission by majority consent of the Commissioners present.'  But this must be read in conjunction with Article 3, Section 11, which establishes that all of the terms of the bylaws are 'subject to interpretation by the Chair.' Article 3, Section 11.
.     "ME:  Interpretation is allowed only when there is ambiguity.  Language which is not ambiguous is not to be 'interpreted' away.  I've seen the County Attorney's Office use this tack before, of 'interpreting' language that is perfectly plain, and it's wrong again.  Last night the chair didn't purport to be interpreting any language, much less an ambiguity in language, nor did Mr. Ambrose make any such claim.  He merely pointed to the wrong Bylaw, in reliance on input from a county employee.
.  "AMBROSE 2, It would be a reasonable and defensible reading of these bylaws to conclude that the Chair had discretion to construe the above quoted language from Article 4 to provide for a majority vote of the Commission only when the order of business was changed at the request of a presenter, 'to accommodate persons to be heard on matters for consideration the Commission,' and for the Chair to further conclude that that restriction did not apply when the change was merely for other reasons.
.     "ME:  Evidently Mr. Ambrose wants the sentence 'The above order of presenting new business may be changed to accommodate persons to be heard on matters for consideration before the Commission by majority consent of the Commissioners present' to be interpreted to mean that the order can be changed arbitrarily for any other reason other than the one in the sentence.  That's a classic strained and unnatural interpretation.  The Bylaw says when the order can be changed, if a majority of the commission wants to.  That's the plain and natural reading of the sentence.  Ambrose's argument is a nullity.
.  "AMBROSE 3, In this case one such 'other reason' the Chair could have decided to make the change could have been to assure that public comments that pertained to individual items on that night's agenda and that would otherwise be made at a call to the public could be made and responded to immediately by commission members at the time that the agenda item they pertained to was under consideration.
.     "ME:  Ambrose's argument makes no sense.  Moving the Call To the Public until after all the old and new agenda items were voted on would ensure that my statement would not be heard at any time when it could have an effect.  Worse, Ambrose is suggesting that he or the chair can put their own limits on the content of a Call To the Public, in addition to the statutory limit that a subject be within the jurisdiction of the commission.  I find it hard to believe that any attorney would make so argue in derogation of citizens' free speech rights.
.  "AMBROSE 4, Yet another 'other reason' for the Chair to have made this change in this case could have been to assure that the 'Call to the Public' was not placed ahead of the 'Approval of Previous Month's Minutes,' as it had been on that night's agenda, because such placement would in fact have constituted a violation of the order of business specified in Article 4 of the bylaws.
.     "ME:  Ambrose is arguing that the chair violated the Bylaws in order to follow the Bylaws.  That argument is ridiculous.  Moving the Call To the Public to the end of the meeting didn't make the agenda conform to the Bylaws, it violated the order of business set out in the Bylaws.
.  "AMBROSE 5, Further supporting this reading of the scope of the Chair's discretion on this point, the language of Article 4 is permissive and not mandatory.  It does not declare that the Chair must obtain the consent of a majority of the Commission in all cases, but only that the Chair 'may' do so.
.     "ME:  Once again, a twisted misreading of a plain sentence.  What's permissive in the sentence in Article 4 is that the order of business may be changed; what's mandatory in the sentence is the method of doing it -- a majority vote of the commission.  Mr. Ambrose's tortured misreading of the sentence is completely unreasonable.
.  "AMBROSE 6, While I appreciate Mr. Jackson's observations and I do agree that it would be preferable in future for the Chair to call for a vote of the Commission before changing the order of business, I believe it would be a misreading of both the letter and the spirit of those bylaws to conclude that the action taken by the Chair on Wednesday night was either improper or illegal, especially in light of the provisions of Article 5, Section 3, which expressly gives the Chair broad discretion to change the order of presentation of individually docketed agenda items.
.     "ME:  Mr. Ambrose repeats the same mistake he made last night.  Article 5 Section 3 doesn't give the chair any discretion at all to change the order of docket items; it gives the chair discretion to change how arguments are presented inside one docket item.  Mr. Ambrose must be desperate for makeshift arguments, to repeat the mistake he made last night.
.  "In conclusion, Mr. Rheinheimer, I appreciate your having Mr. Ambrose generate an answer, but I can't appreciate his answer itself because it consists of makeshift arguments, tortured misreadings of plain language, nonsensical arguments that have no relation to the facts, and repetition of his mistake last night.
.  "I've answered your email quickly so that no one can accuse me of inventing makeshift arguments, as Mr. Ambrose did.  I repeat my request that you send an attorney to meetings who will know the law during meetings, when the knowledge matters."

This will be updated soon.