COCHISE COUNTY SUPERVISORS CREATE BUILDING CODE ADVISORY BOARD
AFTER YEARS OF ILLEGALLY IGNORING STATE LAW REQUIRING ITS FORMATION


AT LAST, on June 25, 2013, the County Supervisors created the building code Advisory Board that state law required to be formed when the county building code was passed in December 2004.

    The vote was 2-1.  The No vote was by Supervisor Searle, who wanted to create an Advisory Board without combining it with an Appeals Board.  Supervisors English and Call voted in favor of creating the Advisory Board (required by state law) but combining it with the Appeals Board (required by the county building code).
    The vote was an admission by the Supes that state law requires an Advisory Board.  The Supes can now be questioned more pointedly their about criminal liability for not creating an Advisory Board when the building code was passed, and about the County's obligation to refund fees and fines collected under a building code which never took legal effect because it contradicted state law.
    The vote was a victory for the citizens who've been working for five years to get the Supes to create an Advisory Board.  The Supes got the details wrong on June 25, but there's hope for getting them right later.
    After the meeting, Searle said the regulations implementing the ordinance must come to the Supervisors for approval.  Citizens should look forward to seeing what contortions the County tries in order to draft regulations where state law requires something which contradicts the building code.  For instance, state law requires a 7-member board, but the county code requires 5 members; and state law says one Advisory Board member must be an ordinary citizen, to represent the public, while the code says every member of the Appeals Board must be a building professional, to supply expertise in his specialty.


Here are older notes about the Advisory Board, from before the County Supervisors finally obeyed the law and created the Advisory Board, only 8 years too late.  The notes are arranged newest first.

From June 18, 2013

An Advisory Board for the county building code is a little closer to happening, over 8 years after state law required it to happen.  Still, citizens may need to speak out when the Supervisors vote, probably next Tuesday.  The proposal that's been sent to them is unworkable, and will leave questions open about the illegality of the building code until now.
    State law says an Advisory Board must be created when a county passes a building code.  The Advisory Board can give input into drafting regulations.  This is the only time anyone representing ordinary citizens can participate in original drafts.  Our Supervisors passed a code in 2004, but without an Advisory Board.  In 2008, the county Planning Department (now Division) proposed combining the Advisory Board with an appeals board.  The Planning & Zoning Commission rejected that 6-0, mainly because the same people shouldn't draft regulations and also judge appeals that challenge the regulations. The Planning Division has now revived the idea, the Commission approved it on June 12, and it'll go to the Supervisors on June 25.
    The Commission voted 6-2, the two No votes being Jim Martzke and Pat Edie, but two Commissioners, perhaps more, voted Yes not because they favored the resolution, but only in order to pass the buck to the Supervisors.  Chairman Lynch is one of these; at a break in Wednesday's meeting, he said he voted Yes primarily because five months of looking at the problem have tired him out. Some citizens have hung in there for 5 years on this problem.
    The Commission's legal duty is to make recommendations to the Supervisors, not pass the buck.  State law says the Commission "shall act in an advisory capacity to the [Supervisors] and may or, if requested by the [Supervisors], shall make a report or recommendation in connection with any matter relating to the development of the county under the jurisdiction of the board...."  See ARS 11-802(B) at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00802.htm&Title=11&DocType=ARS
    In my opinion, the Commission got poor guidance from its Chair and the County Attorney's office (CAO).  My criticisms aren't based on somebody disagreeing with me; I neither like people because they agree with me, nor agree with them because I like them.  For instance, Commissioner Ron Bemis voted wrong (by my lights) on Wednesday, but he is thinking deeply about the job of the Commission and the Planning Division, so I put his thoughts into my update last Wednesday.  All personal matters aside, the Chair and the CAO created a terrible mess, and the Supervisors should reject the Commission's recommendation to combine boards.
    The facts and law, as gathered by me and four other people at the Commission meeting, follow.

1.  Under state law, when county supervisors pass a building code, it's their duty to create an Advisory Board.  See ARS 11-862 -- at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00862.htm&Title=11&DocType=ARS
-- for the basic law, and for background see the writeups at
http://littlebigdog.net
    When public officers knowingly fail to do their duty, it's a misdemeanor; see
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00443.htm&Title=38&DocType=ARS
    Also, a building code without an Advisory Board is in conflict with ARS 11-862, and an ordinance that's in conflict with state law can't be applied; see paragraph D of
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00251-05.htm&Title=11&DocType=ARS
    For years, the Supervisors have been violating ARS 38-443, and the County has been collecting fees and fines under a building code that it has no right to apply.  The Supes might worry about jail time, and the County might worry about refunding money it collected illegally.  Getting into compliance with state law now won't make those worries go away, and failure to fully air these legal issues will look like an attempted whitewash.

2.  The proposed combined board has incompatible functions.  It would both advise about proposed regulations, and judge appeals from regulations already enacted.  The Planning Division (formerly Department) has a long history of saying that advising, and judging appeals, are separate functions.
    In 2008, the Department said "The functions of the Building Safety Advisory and Appeals Board ... will be to hear and decide appeals of orders, decisions or determinations made by the Building Official relating to the application and interpretation of the adopted Cochise County Building Safety Code; to determine the suitability of alternative materials and methods of construction; and to advise the Building Official and the Planning Department on any proposed revisions or additions to the adopted Cochise County Building Safety Code."  See the 2008 proposal at
. http://www.co.cochise.az.us/P&Z/Agenda/2008-09%20PZ.htm
    In 2011, the Division repeated that a combined board could advise "the Building Official on building code adoptions, updates and amendments being considered as well as ruling on appeals and interpretations and evaluating the suitability of alternative materials and construction."  See
. http://agenda.cochise.az.gov/docs/2011/WKS/20110927_220/450%5F9%2E27%2E11%20Advisory%20Role%20Work%20Session%2Edoc
    And now, in 2013, the Division is repeating language from 2008:  the proposed board's functions "are i) to hear and decide appeals ... ; ii) to determinate the suitability of alternative materials and construction and to permit interpretations of the provisions of the Building Codes; and, iii) to advise the Building Official and the Planning Department on any proposed revisions or additions to the" county building code.  See
http://littlebigdog.net/Advisory3.jpg
    Not only has the Division always distinguished helping to draft regulations from hearing appeals that criticize the regulations, there's a good reason for that distinction.  As citizens have repeatedly noted, in America the same people don't get to write laws, then judge appeals that criticize the laws.  This is basic.

3.  The advisory and appeals boards have conflicting requirements for their membership and duties.
    State law requires an Advisory Board with from 5 to 7 members (the resolution chose 7), with 4-year terms, and although most members must be professionals using their professional knowledge, one must be "A person representing the public," see ARS 11-862 at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00862.htm&Title=11&DocType=ARS
    In contrast, the Appeals Board must, under the International Building Code (IBC) from which it derives, have 5 members, with 5-year terms, all "registered design professionals" exercising their specialties.  There's no place for a citizen to represent the public.  See IBC Section 112.3 at
http://littlebigdog.net/IBC1.jpg
and section B101.2.2 at
http://littlebigdog.net/IBC2.jpg
    In short, the two boards can't have the same members, and won't have the same jobs.
     The advocates of combining the boards disagree about what they want.  In 2008, Planning Department employee Ron Durgin told the Commission there would be one board, but changed his story after some questioning, and said there would be two boards.  On April 9, 2013, CAO attorney Britt Hanson told the Supervisors there would be two boards, though composed of the same people.  See about 1:20 to 1:30 into the video at
. http://www.youtube.com/watch?v=5EU5RtINqUM&feature=youtu.be
But on June 12, CAO attorney Adam Ambrose vehemently told the Commission there would be one board.  If the proponents can't agree on a story, they shouldn't yet be going to the Supervisors.

4.  CAO attorney Ambrose's job was to give impartial legal advice to the Commission, but he ardently advocated for the resolution.
    I arrived at the meeting late, after the initial presentation by the Planning Division and after five citizens spoke.  Ambrose was arguing to the Commission in favor of the combined board.  But advocacy wasn't part of his job.  The CAO's duty is to give legal advice, not advocate a political decision.  The CAO shall "Act as the legal advisor to the board of supervisors" -- ARS 11-532 at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00532.htm&Title=11&DocType=ARS
-- and the CAO's duty is the same at Commission meetings.
    Ambrose's performance reminded me of an old lawyers' saying, "If the facts are against you, argue the law; if the law is against you, argue the facts; if the facts and the law are both against you, shout and wave your arms about." Ambrose spoke for a long time; several citizens perceived him as trying to tire out and bully the Commissioners, and one citizen described him as "twisting our words," knowing that the public wouldn't be allowed to rebut him.  Worse, many of his assertions were mistaken:
    -- he repeatedly asserted that the Advisory Board and the Appeals Board had the same job (appeals only) and could have the same members.  They don't and they can't; see sections 2 and 3 above.
    -- he asserted that he had tried for years to understand the arguments made by citizens, but couldn't do it.  If he wanted to show the evils of tainting impartial advice with partisan advocacy, he succeeded.  And my experience, and the experience of everyone else I know in this 5-year battle, does not include any voluntary contact by Ambrose about the matter.
    -- he mentioned ARS 38-443, which makes it a misdemeanor for the Supervisors to intentionally fail in their duty.  Knowing about ARS 38-443, why hasn't the CAO prosecuted sometime since 2008?

5.  The Commission could have reconsidered its vote, but wasn't properly advised about that possibility.
    As soon as possible after the vote, I noted the problems noted in paragraphs 2 and 3 above -- that the two boards have incompatible functions and membership -- and suggested that the Commission reconsider.  Lynch didn't follow up that suggestion.
    The Open Meeting Law says "Members of the public body may not discuss or take action on matters raised during the call to the public that are not specifically identified on the agenda [but] may, however, respond to criticism made by those who have addressed the public body, ask staff to review a matter, or ask that a matter be put on a future agenda."  See section 7.7.7 at
. https://www.azag.gov/sites/default/files/sites/all/docs/agency-handbook/ch07.pdf
    Because my suggestion was about an item on the agenda, the Open Meeting Law did not prohibit a response by Lynch.  He or any Commissioner could have moved to reconsider the vote.  However, Lynch merely requested Ambrose to research the conflicts set out in paragraphs 2 and 3 above, and report at the next meeting -- which will be two weeks after the Supervisors vote about combining boards.  Obviously, Ambrose's report will be useless.  But if the problems are important enough to assign to the CAO, then sending the proposal to the Supervisors was premature.

6.  Volunteers in local government, like the Commissioners, promise to apply their knowledge and experience, for free.  For that they deserve praise.  But when they knowingly refuse to do what a job requires, they don't deserve a free pass.
    Lynch is a strong Chair, clearly wants to do a good job, and usually succeeds, but sometimes he indulges in idiosyncrasies -- things like trying to intimidate citizens who speak at a hearing, giving unjustified deference to CAO attorneys, and not admitting plain error.
    People involved in politics in Cochise County are all on the same team, though in intramural conflicts we sometimes forget that.  I think citizens, not gummint employees, are the first string on our team.  But we all should consciously work at doing better.  Getting hung up on saving face stands in the way of working at the level of quality that citizens expect and deserve.  Come next Tuesday, the Supervisors should live up the highest standard.

From June 6, 2013

The Planning & Zoning Commission agenda for 4 p.m. June 12 is at
. http://cochise.az.gov/uploadedFiles/Planning_and_Zoning/061213%20PNZ%20Agenda.pdf
AGENDA ITEM 3 is a public hearing on "the establishment of a joint Building Code Advisory and Appeals Board."
    The lack of an Advisory Board has become controversial, what with the possibility of Supes serving jail time, and Building Code fees and fines being refunded to rural people.  State law requires a county building code to provide for an Advisory Board.  Cochise County's Building Code, lacking an Advisory Board, conflicts with state law.  Supervisors don't have legal authority to pass an ordinance in conflict with a state law.  When a County takes your money without legal authority, you should get your money back.
    The discussion below is long, because the subject demands it.
    The Planning Division's current proposal for combining the advisory board with another nonexistent board, an appeals board, takes up 10 pages of Planning staff's "packet" for Tuesday's meeting; see
. http://cochise.az.gov/uploadedFiles/Planning_and_Zoning/061213%20PNZ%20Packet.pdf
That's a large file, so I've posted just this item's pages at:
http://littlebigdog.net/Advisory1.jpg
http://littlebigdog.net/Advisory2.jpg
http://littlebigdog.net/Advisory3.jpg
http://littlebigdog.net/Advisory4.jpg
http://littlebigdog.net/Advisory5.jpg
http://littlebigdog.net/Advisory6.jpg
http://littlebigdog.net/Advisory7.jpg
http://littlebigdog.net/Advisory8.jpg
http://littlebigdog.net/Advisory9.jpg
http://littlebigdog.net/Advisory10.jpg
Those pages load much faster than the County's giant posting.
    The pages also seem to reveal a confused Planning Division.  For instance, if I'm reading the Advisory1 page right, it says the 2003 edition of the International Building Code (IBC) lets a Board of Appeals "determine the suitability of alternative materials and construction and to review interpretations of the Building Code," and implies that such language is in IBC section 112.  Actually, the language is from state law about the Advisory Board, ARS 11-862, at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00862.htm&Title=11&DocType=ARS
    The entire 2003 IBC is at
. https://law.resource.org/pub/us/code/ibr/icc.ibc.2003.pdf
That's huge, so may download very slowly; to save time, here are its statements about section 112:
http://littlebigdog.net/IBC1.jpg
and
http://littlebigdog.net/IBC2.jpg
and here's the County site listing County modifications to the IBC:
. http://cochise.az.gov/cochise_planning_zoning.aspx?id=422&ekmensel=c580fa7b_182_360_422_1
    In all of that, here's all the info about the Board of Appeals.
    Appendix B includes the requirements for Appeals Board members:
.  "The board of appeals shall consist of five individuals ... :
.  "1.  Registered design professional with architectural experience of a builder or superintendent of building construction with at least ten years' experience, five of which shall have been in responsible charge of work.
.  "2.  Registered design professional with structural engineering experience.
.  "3.  Registered design professional with mechanical and plumbing engineering experience of a mechanical contractor with at least ten years' experience, five of which shall have been in responsible charge of work.
.  "4.  Registered design professional with electrical engineering experience or an electrical contractor with at least ten years' experience, five of which shall have been in responsible charge of work.
.  "5.  Registered design professional with fire protection engineering experience or a fire protection contractor with at least ten years' experience, five of which shall have been in responsible charge of work."
See section B101.2.2 at
http://littlebigdog.net/IBC2.jpg
    Appendix B's list of five building professionals serving 5-year terms conflicts with the ARS requirements for an Advisory Board with 4-year terms, and which
.  "shall consist of at least five but not more than seven members and shall include at least members from the following categories ....
.  "1. An architect duly licensed in the state of Arizona.
.  "2. A professional engineer duly licensed in the state of Arizona.
.  "3. A general contractor duly licensed in the state of Arizona.
.  "4. A person representing the public and a resident of the county.
.  "5. A person engaged in the electrical, mechanical or plumbing trade."
See ARS 11-862(A) at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00862.htm&Title=11&DocType=ARS
    Littlebigdog's IBC1 page shows IBC Section 112, which generally defines the Board Of Appeals, and includes the following language:
.  "112.1 ... to hear and decide appeals of orders, decisions or determinations made by the building official relative to the application and interpretation of this code, there shall be and hereby is created a board of appeals....
.  "112.2 ... appeal shall be based on a claim that the true intent of this code or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of this code do not fully apply or an equally good or better form of construction is proposed...."
    IBC section 112 applies AFTER a regulation is written or enforced.  It has NOTHING TO DO WITH DRAFTING a building code.  On the distinction between drafting and handling appeals, Planning appears confused:  it argues (see Littlebigdog's Advisory1 page) that "Perhaps the span of time between the enactment of ARS 11-862 and Section R112 of the 2003 IBC resulted in this Board being called a 'Board of Appeals.'"  However, there's nothing to explain or be confused about; IBC section 112 requires a Board of Appeals by name, without regard to the enactment of any state law.  And in 2008, Planning clearly distinguished between drafting regulations and handling appeals, when it tried a similar proposal (which the Commission defeated 6-0): "State Statute requires the establishment of a Building Safety Advisory Board and our individual Building Codes require the establishment of a Building Code Board of Appeals....  we are proposing that one Board be established to perform the duties identified by State Statute, our Building Codes and to additionally act as technical advisory in the formation and development of revisions or additions to our Building Codes and Ordinances in the County."  See
. http://www.cochise.az.gov/uploadedFiles/Planning_and_Zoning/Commission%20Memo%20-%20Building%20Safety%20Advisory%20and%20Appeals%20Board%20%209-10-08%20Hearing.pdf
Planning's sudden appearance of confusion is odd.
    Boards with such different purposes and requirements are not equivalent, and cannot be combined.
    After Planning's 2008 attempt to combine boards was defeated, the Supes didn't form an Advisory Board.  Three years later, in late 2011, Planning requested a BOS work session.  What the request told the BOS is fascinating now:
.  "Section 112 of the County Building Code requires a jurisdiction to create a 'Board of Appeals' in order to hear and decide appeals of orders, decisions or determinations made by the building official relative to the application and interpretation of the building code.
.  "In addition, ARS 11-862 requires the formulation of a five member 'Advisory Board' tasked to determine the suitability of alternative materials and construction and to permit interpretations of the provisions of such code....
.  "The creation of such a single Board would bring considerable value ... by advising the Building Official on building code adoptions, updates and amendments being considered as well as ruling on appeals and interpretations and evaluating the suitability of alternative materials and construction."  See
. http://agenda.cochise.az.gov/agenda_publish.cfm?mt=ALL&get_month=9&get_year=2011&dsp=agm&seq=450&rev=0&ag=220&ln=12672&nseq=0&nrev=0&pseq=&prev=#ReturnTo12672
    So the Supervisors were told by 2008 that an Advisory Board was required by law.  Yet mysteriously the Supes did not form the Board; on January 9, 2013, the BOS emailed me that "We have not constituted an Advisory Board," and that the BOS was "studying" the issue.
    Meanwhile, Planning's 2011 request for a work session contains yet more nuggets, including
.  "On September 10, 2008 ... two members of the public expressed their concerns over the creation of a single Board for the following reasons:
.     "1) The creation of a combined board would double as its own appeals board and that any objectivity would be lost because this combined board will not rule against itself....
.     "4) The creation of a combined board is considered to be a combination of powers with two very different and incompatible powers.
.  "After much discussion and deliberation, the Commission voted unanimously (6-0) to reject Staff's proposal and recommendation."
The arguments about separation of power are simple:  in America, we don't let the same people write regulations, and also be judges when the regulations are challenged.
    Planning's 2011 request also reveals that there's no real need for an Appeals Board at all:  "Building Code Appeals Boards rarely meet.  Jack Holden has not had the need to convene an Appeals Board in the past 20 years."  Why should an Advisory Board, required by state law, be delayed because of an appeals board that never meets?  What is the County hoping to accomplish by spending hours of time to tangle the two separate boards together?


From June 4, 2013
The Building Code was passed by the County Supervisors in 2004.  The minutes of that meeting -- see
. http://www.co.cochise.az.us/BOS/MeetingMinutes/12-14-04%20Min.htm
-- show that the Planning Department (now Division) was focused on raising money:  "For the past several years, the plan has been in the works dealing mostly with budget information like the associated costs and revenues ....  The plan assumed a 32% increase in permit fees, a 2% annual growth rate, and a 10% increase in permit activity.  Assuming these figures, the plan would pay for itself in about 3 years and only be subsidized by the General Fund for the start-up period.  Thereafter, the users of the services would be paying for the services through permit fees."  With revenue exceeding costs, there'd be excess income, which would finance other, unspecified, County programs.
    The Code digs deep into people's pocketbooks. The former cost for a permit to build a house was $75.  The new Code charged for a house's value, plus fees for "plan review" and extras like a porch, garage, fence, etc.  For a 1000 square foot house, the base fee became $587.25 plus extras -- all told, about 15 times what a permit cost before the Code.
    The Code fees are regressive:  as homes' values go up, but fees increase slower.  For a house valued up to $25,000, every $1000 more in home value added $12.50 to the permit fee.  From $25,000 to $50,000, every $1000 more in value added only $9 to the fee.  From there to $100,000, every $1000 more value added $6.25. From there to $500,000, every $1000 more value added $5.  From there to $1,000,000, every $1000 more value added $4.25.  Over $1,000,000, every $1000 more value added $2.75.  So to add $10,000 value to a million dollar house cost $27.50 more, but to add $10,000 value to a cheap house cost $125.  The poor pay more.
    The Department's scheme flopped.  Its calculations about income were based on only 2 or 3 years of data, too short a baseline for a mathematician to rely on.  The housing boom ended soon, and the Code began bleeding money. Then the Department changed bookkeeping methods to hide the bleeding.  As to a future boom, here's an article that debunks the hype:
. http://www.cjr.org/the_audit/its_not_another_housing_bubble.php?page=all
    But in their eagerness to squeeze money out of Cochise County residents, especially those who aren't rich, the Supes broke the law, by not forming an Advisory Board.  State law made it their duty to form an Advisory Board when they adopted the Building Code; see ARS 11-862 at
.
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00862.htm&Title=11&DocType=ARS
    An Advisory Board is the only way an ordinary citizen could help draft a Building Code regulation from the very beginning.  With no Advisory Board, the Planning Division writes regulations the way County employees want, despite the law's command to give an ordinary citizen input from scratch.  You've been robbed of a right that state law gives you.
    For failing to do their duty, the Supes can go to jail:  "A public officer ... who knowingly omits to perform any duty ... required ... by law is guilty of a class 2 misdemeanor unless special provision has been made for punishment of such omission."  See ARS 38-443, at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00443.htm&Title=38&DocType=ARS
    Also, the particular way the Supes shirked their duty -- passing a Building Code without an Advisory Board -- puts our Code in conflict with state law, so legally, our Code can't apply to rural areas:
.  "A. The board of supervisors may:
.     "1. adopt ... ordinances ... which are not ... in conflict with any ... law of this state....
.  "D. An ordinance ... may apply to the unincorporated ... areas in the county if the ordinance is not in conflict with an existing ... state law ..."  See ARS 11-251.05, at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00251-05.htm&Title=11&DocType=ARS
    Because our Code can't legally apply to rural areas, our rural residents should get a refund of all the fees they've paid.  A decent trial attorney can figure out other damages, too.
    Since at least 2008, the Supes and the County Attorney's Office ("CAO") have dodged any discussion of this mess.  But citizen pressure kept building.  Finally, on May 15, 2013, Supervisor Searle cracked.  He emailed that "The County Attorney's Office has recently changed its opinion on the requirement of having an Advisory Board and we are moving forward to make sure we are in compliance with State Regulations."
    Searle's email is false in two ways.  First, the CAO has said since at least 2008 that an Advisory Board is required; second, the County hasn't been out of compliance with state "regulations," it's been breaking state laws.
    Searle's statement does show, however, that he wants immunity from personal liability for his lawbreaking.  Supes can be immune for an act if they act "in good faith" or "in good faith reliance on written opinions of" the CAO; see ARS 11-266, at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00266.htm&Title=11&DocType=ARS
and ARS 38-446, at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00446.htm&Title=38&DocType=ARS
But ARS 11-862 is too clear for anyone to ignore it and claim to have a good-faith basis.  Any claim of "good faith reliance" on a CAO opinion which contradicts the 11-862's plain words should be laughed out of court.
    Who knows how long the Supes will simultaneously claim to trust the CAO's current advice, and attack its prior bad advice?


From May 26, 2013:  Pokey time for pokey County Supervisors?

ARS 11-862, about county building codes, says "Any code adopted pursuant to this article shall contain a provision for an advisory board," which is the general public's only early input into drafting regulations.  Cochise County has no Advisory Board, so our Code wasn't adopted pursuant to 11-862, so our citizens have been denied a right provided by state law, and all fees and fines collected under the county Code may be illegal and have to be refunded.
    The Supervisors have knowingly broken the law for years, and dodged commenting about their violations of law.  Their silence was as annoying as President Obama's years of silence about drones; the cases are parallel in that we don't yet know the results of admitting that a problem exists.
    At last, Searle, to his credit, finally admitted the problem exists, though to his discredit he won't admit he owns it.
    But personal consequences may face each Supe. Under ARS 11-862, if county supervisors adopt a building code, they have a duty to create an advisory board.  The Supes have, for years, knowingly dodged that duty.  That's a misdemeanor:  "A public officer ... who knowingly omits to perform any duty the performance of which is required of him by law is guilty of a class 2 misdemeanor unless special provision has been made for punishment of such omission."  See
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00443.htm&Title=38&DocType=ARS
    The last I looked, a Misdemeanor 2 draws a fine of about 1/8 of a Supervisor's monthly pay, plus up to 4 months in the pokey.  Should there be pokey time for our pokey Supes?
    Our Supes might well get private attorneys.  In general, our County Attorney's Office doesn't have a record of ordinary competence; and if the other Supes follow Searle and blame their own violation of law on the County Attorney's Office, that's not a good basis for an attorney-client relationship.


From May 18, 2013:  Supervisor Searle has cracked

    ARS 11-862 says "Any code adopted pursuant to this article shall contain a provision for an advisory board."  An Advisory Board is the only way for the public to have a voice at the very beginning of drafting regulations.  Cochise County's Building Code has no Advisory Board, so our Code was not adopted pursuant to law.  All the fees and fines collected under the Code may be illegal and have to be refunded.  The Supervisors knowingly broke the law for years, despite public pressure.  Supervisor Richard Searle has finally cracked.
    In 2004, the Supervisors passed a Building Code without creating an Advisory Board.  Years later, an email obtained under the Public Records request revealed that in 2008, a committee of County employees and building trade executives existed; however, that didn't satisfy the law, and according to Searle it didn't do anything.  Somehow it faded away.  In 2008, the Planning Department wanted to create a combined Advisory and Appeals Board.  Combining boards is a bad idea (for the reasons why, see the Extra 1 section below), and in 2009, the Planning & Zoning Commission defeated that idea 6-0.
    Now the idea has been brought back.  The first time the Department tried it, a Department memo told everyone, and a County employee specifically emailed Searle, that the Advisory Board was required by law.  In 2011, the Supes said they would lobby to repeal the law; whatever they tried, failed.  They still didn't create the Advisory Board.  On January 9, 2013, a County employee emailed me that the County was "studying" the issue.  Citizens kept the pressure up, with the most recent pressure including our email of May 13 (the item "The Supes working hard to violate your rights"), and Diana Barton's emails asking Searle tough questions, and attention from citizens like Jere Fredenburgh and Winston Witwer.
    Searle cracked.  At 9:22 a.m. on Wednesday, May 15, 2013, he emailed "I do not oppose the forming of an Advisory Board for the Building Code.  The Board of Supervisors has recently instructed our P&Z Director to implement an Advisory Board and she is in the process of bringing this forward.  We actually had an advisory committee several years ago which quit meeting because there was nothing for it to do.  As there have been no appeals to the code, there has been no pressing need to have a standing board in place.  The County Attorney's Office has recently changed its opinion on the requirement of having an Advisory Board and we are moving forward to make sure we are in compliance with State Regulations."
    Searle isn't "owning his problem."  The analogy is to AA's "owning your addiction."  Here's how one website --
.  http://addictionrehabnow.com/own-your-addiction-first-step-to-recovery/
-- describes it:  "Owning your addiction means acknowledging to yourself, and others, that addiction has become a part of your life -- it's a part of who you are.  Once you are able to acknowledge that, and face up to that difficult fact, you can start to take control of your addiction, and your life."  Searle is a nice, likeable guy, personally, but that doesn't qualify him for public office; and if he doesn't "own his problem," he'll never be able to move on and be an effective Supervisor.
    Searle's May 15 email is a veritable pretzel of "DISowning his problem:"
        -- Searle's always resisted any kind of citizen input into the Building Code -- not only since 2008, the earliest date when he indisputably knew the law, but since 2005, when he took office and the Code took effect.  When the Code was passed, a "review process" was promised, but it only resulted in a series of phony in-house reviews by the Planning Department of itself, that concentrated on cash flow; and the last time I asked Searle if a genuine review would ever take place, he grinned and said a review would never happen, because the Code was firmly in place.  Searle has to "own his problem."
        -- The Planning Director isn't proposing an Advisory Board, but a combined Advisory and Appeals Board -- which the Planning & Zoning Commission rejected years ago (see Extra 1 below).  Why not just follow the law, form the Advisory Board as state law requires, and worry about frills later?
        -- The "advisory committee" that Searle mentions didn't meet the statutory requirements for the required Advisory Board.
        -- Since Searle says there were no appeals, he can't see any pressing need for an appeals board, so why keep tying that board to the Advisory Board that state law does require?
        -- Searle appears to be trying to shift blame to the County Attorney's Office (CAO).  To my knowledge, the CAO has ever opined that an Advisory Board is not legally required; the CAO just won't explain why it let the Supes break the law.  If the CAO did advise the Supes to violate state law, the advice had better be written; casual conversations don't give the Supes a legal excuse for robbing citizens of their rights.
        -- The statute doesn't need interpretation by the CAO.  It opens "Any code adopted pursuant to this article shall contain a provision for an advisory board," ARS 11-862 at
.  http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00862.htm&Title=11&DocType=ARS
What part of "shall" needs interpretation?

That was the main article.  Here's "Extra 1," followed by a DEFENSE of Searle.

Extra 1:  Why combining Advisory and Appeals Boards is a bad idea
    One basic reason that combining the Boards is a bad idea is that people shouldn't judge appeals from rules which they themselves wrote.  This "separation of powers" is basic in America.  It permeates everything we do.
    The principle applies at work.  The Columbia Journalism Review has a column at
.  http://www.cjr.org/behind_the_news/stories_id_like_to_see_13.php?page=all
which invokes the principle in a weighty matter:
.  "In January, a ... US Court of Appeals ... sharply curtailed President Obama's ability to make so-called recess appointments ... to put his appointees in place when the senate refuses to confirm them....
.  "The decision ... would invalidate the appointments of, among others, three sitting members of the five-member National Labor Relations Board, who had been given recess appointments in 2011....
.  "That in turn could allow all of the decisions made by the NLRB since these appointees took office to be challenged ...."
The federal case isn't 'on all fours,' meaning identical in every detail that might matter, but it is similar in principle.  If government actions are illegal, there's a real likelihood that the actions must be undone, and any money collected from citizens must be given back to them.
    The principle applies at play.  In the May 20 issue of Sports Illustrated, the last page is a column by Joe Sheehan, "Upgrading the Umps." Even in the game of baseball, Sheehan invokes the separation of powers:  "Baseball needs a new replay system similar to what the NCAA has in football, in which a veteran official in the booth decides whether to overturn a call, not the men on the field who may have missed the call in the first place."
    Combining the functions of writing regulations, and hearing appeals from the regulations you wrote, is not what Americans do.
    There's another way that combining the Advisory and Appeals Boards is a bad idea:  it's a red herring designed to distract us from what's really going on.  An Appeals Board would have no work at all; there's been no business for an Appeals Board in over 20 years.  So why have the Supervisors and Planning employees kept stalling the Advisory Board unless it's combined with an Appeals Board that is unneeded?
    The people who want to follow separation of powers are right in principle, while the people who want to violate separation of powers are wrong in principle, and are using the issue as an excuse to break the law for the better part of a decade.  What a farce.
    In Searle's defense, "let me make one thing perfectly clear:"  Searle is at the center of this storm because he responds to the public better than the other Supes.  On this issue, he's doing his job better than the others.  They get an F for not showing up in class.  Searle may be getting a D, but at least he shows up.  I have to give him credit for that.  Nonetheless, he could and should be getting better than a D, for the following reason:
    While Searle's allegation about the County Attorney Office's former advice is unjustified, it's true that the CAO does sometimes give different versions of facts to different people, depending on what the CAO wants at the particular time.  For instance, in December 2012 and on May 7, 2013, the CAO told the Supervisors that Zoning violations include Building Code violations:  the CAO presented a contract which referred to "violations to the Zoning Regulations ... including ... of the ... Building Safety Code".  But between those two dates, in January 2013, at a Planning & Zoning Commission meeting, a deputy county attorney said the Commission couldn't discuss the Building Code because it was separate from the Zoning Ordinance, and wasn't separately named on the agenda.  The CAO is indeed labile in general, but that doesn't mean that Searle's allegation is justified in this particular case.
    And dealing with the CAO can be difficult.  Its employees may be confusing their possession of a law degree -- a Juris Doctor, a J.D. -- with being a J. Deity.  Trying to cope with such prima donnas can make dealing with the CAO look like buying a meal at Amy's Baking Company (see
.  http://www.washingtonpost.com/blogs/compost/wp/2013/05/16/amys-baking-company-vs-the-entire-internet/
and enjoy the videos!)
    Also in Searle's defense, he didn't initiate the lawbreaking; he was dragged into it by the team of County Supervisor Pat Call, and Call's old cohort James Vlahovich, who's been a County employee for decades.  In 2004, Call and Vlahovich were the prime touts behind the Building Code.  When Searle took office, he went along.  If Searle had been his own man, he wouldn't be in this mess now (the spectacle is like watching Lonesome Dove and seeing Jake Spoon hang out with the wrong crowd; see
.  http://www.youtube.com/watch?v=YlQ1xWQzkOw
but don't take the video literally.)
Older narratives, for more background.

At 11:00 on Tuesday, April 9, the County Supervisors will have a work session to discuss the following:
. http://agenda.cochise.az.gov/agenda_publish.cfm?mt=ALL&get_month=4&get_year=2013&dsp=agm&seq=1202&rev=0&ag=494&ln=22984&nseq=0&nrev=0&pseq=&prev=#
Here's the agenda item's key language:
.  ... This work session is to discuss the Arizona Revised Statute requirement and the adopted Building Code to establish an appeals board and an advisory board.  Staff is proposing a combined Board to meet both requirements....
.  ... on August 14, 2008, a proposed ordinance establishing a Joint Building Safety Advisory and Appeals Board was presented to the Planning Commission.  The Commission rejected this request as they felt the boards should be staffed separately, rather than combined. Public input weighed heavily in this decision.  There seemed to be some misunderstanding of what the "appeal" portion of the board's duties entailed and confusion over "who's" decision might be appealed.  Staff was suggesting that any appeal of a decision by the Building Official could be appealed to this joint board.
.  On September 27, 2011, a work session was held with the Board of Supervisors to seek direction on either forming a Joint Board or to staff the two boards separately.  The Board did not provide clear direction....
. ... Members of the Public have again raised the issue of the lack of formation of these two Boards. Staff is requesting that the BOS provide direction ....

The agenda language is misleading about a key fact:  that under state law, the Advisory Board had to be formed when the building code was passed.  The code was passed in late 2004 -- but the Advisory Board wasn't formed.

The paragraph beginning "As way of background, on August 14, 2008," is inaccurate and incomplete:
-- The paragraph doesn't explain why the Advisory Board wasn't formed between 2004 and 2008.
-- That paragraph says that at a 2008 meeting (the Request says August, but the meeting was on September 10), the P&Z Commission "rejected this request [to form the Advisory Board and combine it with another board] as they felt the boards should be staffed separately, rather than combined."  Combining the two boards into one was what CCIPRA opposition was based on, but before the Commission voted, the Department abandoned that idea; the County Building Official "stated there would be two separate boards".  After that oral backdown, the Commission voted 6-0 against the proposal as submitted.
-- The paragraph also says "[t]here seemed to be some misunderstanding of what the 'appeal' portion of the board's duties entailed and confusion over 'who's' [sic] decision might be appealed."  However, the Planning Department's presentation did not create any misunderstanding or confusion.  It began "The functions of the Building Safety Advisory and Appeals Board ... will be to hear and decide appeals of orders, decisions or determinations made by the Building Official relating to the application and interpretation of the adopted Cochise County Building Safety Code; to determine the suitability of alternative materials and methods of construction; and to advise the Building Official and the Planning Department on any proposed revisions or additions to the adopted Cochise County Building Safety Code."  It couldn't be clearer.  Or, does the Department mean that IT itself was confused about what was going on?

The Request's version of events in 2011, three years after 2008, is also misleading:
-- The Request says that "On September 27, 2011, a work session was held with the Board of Supervisors to seek direction on either forming a Joint Board or to staff the two boards separately."  Actually, the agenda for 9/27/11, at
. http://agenda.cochise.az.gov/agenda_publish.cfm?mt=ALL&get_month=9&get_year=2011&dsp=ag&seq=220#ReturnTo0
shows the Department's extreme bias in favor of a combined board.
--
The Request, in saying that the BOS "did not provide clear direction" at the 9/27/11 work session, looks like an attempt to whitewash intentional lawbreaking by the" Supervisors.  No minutes for that meeting have been posted, but a County employee emailed to me that the BOS "will be seeking a legislative change to do away with the requirement to establish an advisory board" -- that is, the Supes chose to keep breaking the law, while hoping it would change.  The Supes didn't get the law changed, nor did they form an Advisory Board.  On January 9, 2013, County employees emailed me that "We have not constituted an Advisory Board" and that the County was "studying" the issue.  Studying whether to obey the law?
-- The Request says "Members of the Public have again raised the issue of the lack of formation of these two Boards."  That's an incomplete statement of citizen concerns.  The County recently admitted what CCIPRA has said many times, that the failure to form the Advisory Board is a violation of law.  See ARS 11-862, at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00862.htm&Title=11&DocType=ARS
Major issues flow from that uncontested illegality:
-- -- Why have the Supervisors not simply obeyed the law and formed the Advisory Board?
-- -- Why has the Department continually insisted on folding the Advisory Board in with a totally separate item, the Appeals Board?  There's a good reason not to do that:  people who appeal from rules shouldn't have to appeal to the people who write the rules.  And there's no good reason to do that:  the Department's material for 9/27/11 said "Building Code Appeals Boards rarely meet.  Jack Holden has not had the need to convene an Appeals Board in the past 20 years."  If a board hasn't met for 20 years, what work will be saved by combining it with another board?
-- -- What are the legal consequences of failing to form the Advisory Board?  They should be severe, because by violating ARS 11-862, the Supervisors have deprived the general public of its only formal input into the drafting of regulations.  Supervisor Searle acknowledged the seriousness of the matter at a candidate forum in Benson before the last election; he said that if the courts ruled the Building Code fees and fines illegal, the County would have to refund the money.  A question of that size deserves more than a perfunctory answer (which is all the County Attorney's Office has provided to the Commission) or complete silence (which is all the County has provided to any citizen whom I know of.)


Years of background on the issue:

Cochise County's Building Code wasn't created pursuant to statute.  Therefore, its permits and fees are illegal.  The Zoning Ordinance administers the Code's permits and fees.  Therefore the Ordinance is abetting the Code's illegality.

If you were on Cochise County's Building Advisory Board, you would have an institutional forum for giving input into Building Code regulations before they were passed, and helping interpret them after they were passed.  You could be a voice for ordinary citizens.  State law requires that one ordinary citizen be on the Advisory Board, precisely for the purpose of "representing the public" instead of giving advice about technical matters.  That's ARS 11-862, a fine law.  See
.  http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00862.htm&Title=11&DocType=ARS

But you aren't on the Advisory Board.  Nobody is, because the Cochise County Supervisors haven't formed it since they passed the Building Code in 2004.  They're breaking ARS 11-862.  They know they're breaking it.  They're knowingly robbing you of your money and your rights.

The Supervisors could, and should, abolish the Building Code.  The Code affects only rural areas, which got along fine before the Code.  There's no evidence that the Code has made rural life better; the people promoting the Code promised that it would save lives, cut insurance rates, and pay for itself within three years, and also that a team of citizens and county employees would evaluate how well the promises were kept -- but not one of those promises was ever kept.  The sorry mess is detailed at
.  http://littlebigdog.net/DumpTheBuildingCode.htm
But Supervisors Searle and Call voted for the Code in 2004, and probably wouldn't vote to abolish it now, so if citizens are going to get a fair deal, we have to keep rubbing the Supervisors' noses in the facts.

We don't know why the Supervisors didn't follow ARS 11-862 and form an Advisory Board in 2004, because we don't know how the County Attorney's office advised the Supervisors.  The County Attorney's office says that information is privileged.  However, as a matter of law, it's up to the client (the Board Of Supervisors) to decide whether to waive the privilege.

We do know that by 2008, the violation of ARS 11-862 was intentional.  That year the Planning Department submitted a memo in support of creating a combined Advisory and Appeals Board.  The memo began "When Building Codes are adopted by Counties, State Statute requires the establishment of a Building Safety Advisory Board"; see
.  THIS LINK
After reading that memo, no County employee involved could claim not to know the law.

The 2008 attempt to combine the two boards failed, but before the Commission rejected the attempt (6-0), a Planning Department employee emailed to a citizen that "the Building Safety Board is a requirement of ARS".  The email was cc'd direct to County Supervisor Searle.  So a County employee told Searle personally that state law required an Advisory Board.  Yet Searle continues to let the County violate the law.

In 2009, CCIPRA followed up with an email that asked:
.  "[The] failed proposal seems to have been shaped by a 'Planning Department Liaison Committee' composed of:
.  "... Planning Department employees Durgin plus four others
.  "... Planning Department head Susan Buchan plus former head James Vlahovich
.  "... Realty-oriented people:  Michael Cerepanya (Castle & Cooke, & a member of SACA), Greg Keller (a consultant, retired from the state Land Department), Lynn Mattingly (Weatherguard Metal Construction, & member of SACA)
.  "... Residents of supervisorial District 3:  Supervisor Searle, Gary Brauchla (realtor, Board Of Adjustment member), Mark Fenn (builder, sometime mayor of Benson), Tim Heine (builder), Raymond Klumb (architect), & Jeff Stoddard (building inspector)."

Of the names in that email, Searle is still a Supervisor, and Gary Brauchla is still on the Planning & Zoning Commission.  Since they were involved in planning the combined board in 2008, they must have known then what the law said.

In 2011, the Supervisors held a work session on this issue.  Afterwards, an attendee emailed to me that the BOS "will be seeking a legislative change to do away with the requirement to establish an advisory board."  That is, the Supervisors wouldn't obey the law, they would only try to change it.  If you're ever stopped for speeding, try telling the cop that you know the speed limit, but want to change it, so won't obey it now.  That would be a mistake.

But the Supervisors didn't get ARS 11-862 changed; it's still in force.  But neither did the Supes form the Advisory Board.  I made a public records request on January 3, 2013, and on January 9 the County emailed "We have not constituted an Advisory Board ...."  Also on that date, a County employee told me the County was "studying" the issue.  Seriously?  The County still needs to study the law before deciding whether to keep breaking it?  Why yes, I was born yesterday, and I did just fall off a turnip truck, thank you for asking.

Other County employees have also made mistakes in defending the Supervisors' lawbreaking.  A deputy county attorney told the Planning & Zoning Commission on January 9, 2013, that illegalities in the Building Code are irrelevant to the Zoning Ordinance.  That's wrong.  The County's own website at
.  http://www.cochise.az.gov/cochise_planning_zoning.aspx?id=302&ekmensel=c580fa7b_182_0_302_1Zoning
says that in the Planning Department, the "Zoning Division is responsible for the issuance of building ... permits;" and in the Zoning Ordinance, regulations 1704.01, 1705, 1706, 1707, 1711, 1712, and 1714.01 (and perhaps more) administer the issuance of permits and the collection of fees.  State law requires such provisions.  ARS 11-815(A) and (B) include "The county zoning ordinance shall provide for its enforcement ... by means of withholding building permits [, and] it is unlawful to erect ... alter or use any building ... within a zoning district ... without first obtaining a building permit".  The Zoning Ordinance is abetting the Building Code's illegality.

On January 10, the same deputy county attorney emailed me that the Advisory Board "is authorized only to provide 'interpretations of the provisions of [the building] code' and would have no authority with respect to their drafting."  That's wrong.  ARS 11-862(A) begins "Any code adopted pursuant to this article shall contain a provision for an advisory board ... to determine the suitability of alternative materials and construction and to permit interpretations of the provisions of such code" -- so the Advisory Board would be involved in drafting, not just interpreting.  And in 2008, the Planning Department said a combined Advisory And Appeals Board would act "as technical advisory in the formation and development of revisions or additions to our Building Codes" -- see
.  THIS LINK
and a Planning Department request for a work session said the combined boards "could function holistically by advising the Building Official on building code adoptions, updates and amendments".  That's drafting, not just interpreting.

The January 10 email also says "the exact function of the advisory board is left to the Board of Supervisors to determine.  ARS 11-[8]62.E" -- perhaps implying that even if the Supervisors formed the Advisory Board, they might give it zero duties.  Any such implication would be wrong.  ARS 11-862(E) says "The functions and duties of the advisory board may be specified by regulation by the board of supervisors;" that simply means the Supervisors should write regulations for the Advisory Board, it doesn't let Supervisors nullify state law by creating an agency but giving it no duties.

When I received the January 10 email, I assumed that the deputy county attorney had copied it to the Commission, but in a January 25 Sierra Vista Herald article, I learned that the attorney added a bit to what he sent to the Commission.  He added "the lack of an advisory board does not affect the validity of the building-related codes."  A person who read my answer to the January 10 email, and thought I was answering what the deputy county attorney sent to the Commission, might think I had dodged the "validity of the building-related codes" issue.  Not so; I couldn't answer an argument that I didn't see.  In fact, the deputy county attorney was himself dodging an argument I've stated many times before:  that ARS 11-862 says that if a building code is passed pursuant to statute, it shall form an Advisory Board, therefore if a building code does not form an Advisory Board, it was not passed pursuant to statute.  All the deputy county attorney did was contradict that argument, without stating any reasoning.  I hope the Commission doesn't simply accept his naked assertions contrary to law, but insists on seeing his reasoning, and on continuing the public discussion after his reasoning is produced.

Supervisor Searle has acknowledged the seriousness of the matter.  At a candidate forum in Benson before the last election, Searle said that if the courts ruled the Building Code fees and fines illegal, the County would just have to refund the money. Given the financial catastrophe that would be for the County, Searle's tolerance of the known illegality of not forming a Building Advisory Board appears strange.  However, one of the sources notes that Searle didn't appear quite himself that night.

In failing to form a Building Advisory Board, the Supervisors, and all the County employees who have abetted them, have not merely broken a state law, they have also violated their oath of office to "support the ... laws of the State of Arizona [and to] bear true faith and allegiance to the same ... and [to] faithfully and impartially discharge the duties" of their office.  For the oath of office, see
.  http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00231.htm&Title=38&DocType=ARS

Any excuse for knowingly breaking the law is irrelevant.  That was settled a lifetime ago by the Arizona Supreme Court.  J. Benjamin Button, a former state superintendent of banks, was sued for not following state law in his job, resulting in a lot of citizens losing money.  In 1934, the state Supreme Court ruled that:  "The legislature has stated in the statute precisely what a bank must do ... and it is not for the superintendent of banks to substitute his own judgment of 'something just as good.' ....  Public officials may not violate the plain terms of a statute because in their opinion better results will be attained by doing so.  They have but one duty, and that is to enforce the law as it is written, and, if the effect of their action is disastrous, the responsibility is upon the legislature, and not upon them.  But, if they knowingly, even though with the best intentions in the world, violate the law, they ... must take the consequences."  The entire case, Button v. Nevin, is at
.  http://az.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19341004_0040040.AZ.htm/qx
Thanks to ACIPRA, the Apache County Individual and Property Rights Association, for pointing me to that.

What can you do to fight stubborn lawmakers who are also willful lawbreakers, and who refuse to explain themselves, but hide behind contradictions of law and logic?  Phone and email the County Supervisors? -- the Planning & Zoning Commissioners -- the Planning Department?  Attend Supervisors and Commission meetings?  Attend work sessions?  It's your county; ownership isn't free; if people like you don't stand up, then no amount of squawking online will mean a thing.