Conflict of interest -- Cochise County Arizona -- County Attorney won't investigate -- Arizona Attorney General refuses to investigate -- Attorney General won't explain refusal

PART ONE:  The Attorney General's Office refuses to investigate a conflict of interest by a County Supervisor, and won't explain why

On July 15, I sent a long email to the Arizona Attorney General's Office, summarizing the conflict of interest of various Cochise County officials.  Part Two of this writeup, down this page just a bit, consists of the July 15 email.  The July 15 includes the text of a formal complaint that I made to the Cochise County Attorney's Office about conflicts of interest by various County officials, including County Supervisor Pat Call; it notes that County Attorney Rheinheimer states "that his office finds no conflict of interest;" and it concludes that the time has come for the state Attorney General to investigate.  I encourage readers to spend some time on Part Two.

On July 29, at 7:53 a.m., I followed up with an email to the Attorney General including "On July 15 I sent an email ... asking if your office would investigate the conflict of interest of several public officials here in Cochise County.  Pursuant to the AGO's instructions, I had re-filed a complaint with the Cochise County Attorney's Office, just to pin down that the CAO had concluded that no conflict of interest existed.  On July 15, our CAO made that clear, so the way was clear for your office to investigate....  Since July 15 I haven't heard anything from your office, so I am sending this to ask the status of your investigation."

At 10:30 a.m., the AGO answered "My apologies for any misunderstanding in our communications regarding our intent to review or investigate this matter.  The analysis and conclusion reached by the Cochise County Attorney essentially addresses the concern relating to the conflict of interest as well as any need for this office to review criminal wrongdoing by public officers."

At 11:28 a.m., I replied "I appreciate the promptness of your answer ... but I'm puzzled by your statement about the 'analysis and conclusion reached by the Cochise County Attorney.'  The only analysis from the County Attorney's Office that I'm aware of is the letter from an appointed deputy county attorney, that made bad legal arguments about Ms. Weissler, only peripherally touched on Mr. Cervantes, and did not touch on Mr. Call at all.  The only conclusion by the County Attorney is in an email dated July 15, which states that 'the Cochise County Attorney's Office finds no conflict of interest with respect to Mr. Call, Mr. Cervantes and Ms. Weissler.'  That statement, as you say, 'addresses the concern relating to the conflict of interest as well as any need for this office to review criminal wrongdoing by public officers,' but the statement amounts to a mere denial of wrongdoing, a conclusion stated without substantial investigation.  Is that really the standard of review in Arizona -- that a County Attorney can say 'nothing to look at here' and the State will look away?  That process would be inconsistent with the earlier statements I received from the AGO that an investigation would be made, so I am asking you to enlighten me further about the process."


PART TWO:  The text of the July 15 email to the Attorney General's Office

Date:  July 15, 2014, 2:40 p.m.
From:  Mike Jackson, mpj@vtc.net
To Andy Rubalcava, cc Buddy Loomis

This email summarizes correspondence about an apparent conflict of interest by Cochise County Supervisor Pat Call, and County Planning & Zoning Commissioners Tim Cervantes and Liza Weissler (I note that, since Ms. Weissler's husband has recently quit a particular job, her apparent conflict has ended).  The Arizona Attorney General's Office indicated that it would proceed with an investigation if I took the preliminary step of making a formal complaint to the County Attorney's Office.  I did so on July 6, and today, July 15, County Attorney Rheinheimer replied that his office finds no conflict of interest.  Therefore, it appears to me that the time has come for the Attorney General to open its investigation.  More details follow.

On April 9, 2014, I sent an email to the Attorney General's Office (the "AGO") to complain about the conflict of interest.  My email included "I have much more information on this, but it does take up space, and I will wait to hear from you rather than send you a mass of information you might not want."  The text of this email is Note 1 below. 

On April 18, Buddy Loomis of the AGO emailed a response including that before the AGO "will consider this case, I need to know if you have attempted to file a complaint with the Cochise County Attorney General's Office as this will be the first step.  If you have not filed with the CCAO, please do so as they will have jurisdiction over this matter."  The text of this email is Note 2 below.

I took the April 18 email as a statement that the AGO would consider this case if, as a first step, I filed a complaint with the County Attorney's Office.  I believed that I had already filed such a complaint, and on April 22, I emailed back to Ms. Loomis describing my postings about the conflict of interest, giving links to summaries at
.  .  http://littlebigdog.net/ConflictOfInterest.htm
and
.  .  http://littlebigdog.net/ConflictRoundup.htm
and offering to discuss the material.  The text of this email is Note 3 below.

I heard nothing for almost two months, so on June 25, I emailed Ms. Loomis asking "Can you please let me know what's happening?"  On June 26, Ms. Loomis emailed back "This information is still under review. If additional information is needed I will reach out, however once a determination is made you will receive notification from our office of how this office will progress forward."  Like the April 18 letter, this letter made it appear that the AGO was investigating the matter, and might investigate further depending on the results of that investigation.

At 9:23 a.m. on June 30, Ms. Loomis sent me an email including "This Office has received and reviewed all of the information you have provided.  It has been determined that the Arizona Attorney General's Office will not be taking any action on this matter and thus this complaint will be closed."  At 10:04 a.m. I answered "I appreciate your office responding, though of course I'm not pleased with the contents of this particular response.  One question:  When your email says that the AG's office 'will not be taking any action on this matter,' is that equivalent to a finding of 'no conflict of interest'?"  At 12:11 p.m. Mr. Rubalcava emailed me that no investigation had been made and that I would "need to address the matter with the [County Attorney's Office].  This office does not represent individuals and cannot offer legal advice to private parties."  The text of this email is Note 4 below.

Of course, I was not asking the AGO to represent me or to give me legal advice, but to investigate apparent violations of law by Cochise County government officials.  Also, at first look I thought I saw a discrepancy between Ms. Loomis's April 18 statement that"Before the Arizona Attorney General's Office will consider this case, I need to know if you have attempted to file a complaint with the Cochise County Attorney General's Office as this will be the first step," and Mr. Rubalcava's June 30 statement that "no investigation was conducted ....  you will need to address the matter with the CCAO."  However, I was able to resolve the discrepancy, to my satisfaction, by concluding that the AGO felt I had not made a complaint to the Cochise County Attorney with sufficient formality.  So on July 6, 2014, I emailed to Cochise County Attorney Rheinheimer a formal complaint about the conflict of interest.  The entire email is supplied below as Note 5.

Rheinheimer did not answer.  On July 14 I emailed him that "It's now been over a week since I sent you the formal complaint under my signature to this letter.  If you are not planning to make a response, please let me know so that I can get that information to the Attorney General.  If you are planning a response, please give me an idea of the time you will send it.  Thank you."  The next day, July 15, at 8:19 a.m., Rheinheimer emailed me "You are free, and have been free at all times, to report whatever you wish to the Attorney General."  At 8:53 a.m. I answered "And the Attorney General wants me to run this by you, in the form of an official complaint, before they will consider it.  If your email of today means that you are refusing to investigate my complaint, please say so, today, so that the AG can begin its work.  Thank you for your consideration."  At 1:08 p.m. Rheinheimer replied "Please feel free to advise whomever you are dealing with at the Attorney General's office that the Cochise County Attorney's Office finds no conflict of interest with respect to Mr. Call, Mr. Cervantes and Ms. Weissler."

Rheinheimer's statement appears to me to "clear the decks" for the Attorney General's Office to conduct a conflict of interest investigation.  Please let me now if there are further formalities I must go through before the investigative process begins.

Thank you for your consideration.

Mike Jackson

NB, following are Notes 1 through 5, referred to in the text.

Note 1, text of my email of April 9:
.  Good afternoon.  Mike Jackson here, in the little town of McNeal in Cochise County, at 520 642 1760, though my email address is better.
.  I'm writing to complain about a conflict of interest by one of our County Supervisors, and two of the people he named to the County Planning & Zoning Commission.
.  The Supervisor is Pat Call.  The two Commissioners are Tim Cervantes and Liza Weissler.
.  Cervantes, and Weissler's husband, each make $45,000 a year from private groups whose chief concern is water.  Call makes an amount which is unknown -- he won't say -- but is probably about $50,000 a year.
.  All three of them fully participated in discussion and voting on water measures actively promoted by the private groups that pay them salaries.
.  I have much more information on this, but it does take up space, and I will wait to hear from you rather than send you a mass of information you might not want.
.  Please email me anytime.  I have a lung problem which sometimes keeps me too busy coughing to talk.  I hope to hear from you soon.
.  Thank you for your consideration.

Note 2, text of AGO April 18 email to me:
.  Thank you for taking the time to bring this matter to our attention. Before the Arizona Attorney General's Office will consider this case, I need to know if you have attempted to file a complaint with the Cochise County Attorney General's Office as this will be the first step.
.  If you have not filed with the CCAO, please do so as they will have jurisdiction over this matter. They can be contacted via email at attorney@cochise.az.gov and via phone at (520) 432-8700.

Note 3, text of my April 22 email to AGO:
.  Good afternoon, Ms.  Loomis.  Mike Jackson here; sorry it took me so long to answer your email of April 18 (copied below my signature here), but my computer crashed.  I'm working from a backup computer now; it doesn't have all my emails stored on it, and that is hampering my ability to answer.  I'm continuing to try to access the emails on the crashed machine.
.  To answer your question as best I can:  I've made long postings in a political newsletter and on a website.  In response to my reports, one of the people with an apparent conflict of interest (Liza Weissler) took the question to the Cochise County Attorney's Office.  Deputy County Attorney Adam Ambrose gave Weissler a letter rejecting any possibility of a conflict of interest. Weissler made Ambrose's letter public, and since then I've closely analyzed its reasoning as to all three people -- Weissler, Cervantes, and Call -- both on the website and in emails directed to County Attorney Rheinheimer.  Here's a short digest of the newsletters and website, with links to some online sites.
.  I discussed the apparent conflict of interest in newsletters before the January 8, 2014, meeting of the Cochise County Planning & Zoning Commission.  This is a 9-member commission, with each County Supervisor appointing 3 members.  Supervisor Pat Call appointed Commissioners Liza Weissler and Tim Cervantes.  For a discussion of the situation as to Weissler and Cervantes, see
.  .  http://littlebigdog.net/ConflictOfInterest.htm
.  Weissler, in response to my reporting, went to the County Attorney's Office, and deputy county attorney Adam Ambrose wrote the following letter to her:
.  .  http://littlebigdog.net/AdviceLetter.pdf
.  In the ConflictOfInterest.htm website, Section IV discusses and analyzes the letter at length.
.  As to Supervisor Call, his own conflict of interest is discussed at
.  .  http://littlebigdog.net/ConflictRoundup.htm
.  The websites above have a large amount of material, but I'll be glad to discuss any of it with you at any time.  Thanks for your consideration.

Note 4,  text of June 30 Rubalcava email to me:
.  Mr. Jackson, your e-mail request for additional information was forwarded to my attention. The AGO has not reached a finding in this matter as no investigation was conducted. It is evident that a local authority CCAO rendered their determination when asked about the potential conflict (DCA Ambrose letter). Although it appears your analysis does not concur with the CCAO’s determination, unfortunately you will need to address the matter with the CCAO. This office does not represent individuals and cannot offer legal advice to private parties.

Note 5, email to Rheinheimer at 11:20 p.m., July 6, 2014

From:  Michael P. Jackson, mpj@vtc.net

To:  Edward Rheinheimer, Cochise County Attorney

Dear Mr. Rheinheimer:

This is a formal complaint about conflict of interest on the part of County Supervisor Pat Call and County Planning & Zoning Commissioners Tim Cervantes and Liza Weissler.  I am sending this to you following guidance by the Arizona Attorney General's Office.

This complaint consists of two sections.  Section I is a copy of the website at
http://littlebigdog.net/ConflictRoundup.htm
and Section II is a copy of the website at
http://littlebigdog.net/ConflictOfInterest.htm

I have sent you these links before, but you did not respond to the information in them.  Your response to this formal complaint will be transmitted to the Attorney General.


Section I.  The ConflictRoundup website at
http://littlebigdog.net/ConflictRoundup.htm

The conflicts of interest shared by Cochise County Supervisor Pat Call and County Planning & Zoning Commissioners Liza Weissler and Tim Cervantes

NOTE:  after all of the events discussed below were over, the husband of Cochise County Planning & Zoning Commissioner Liza Weissler quit his job at the Friends of the San Pedro River, thereby eliminating Weissler's financial conflict of interest.

Three Cochise County government figures -- Pat Call, Liza Weissler, and Tim Cervantes -- have ruined their own reputations.  They took money from private groups pushing a water program, then voted for the program at government meetings (the Board Of Supervisors for Call, and the Planning & Zoning Commission for Weissler and Cervantes). The appearance is that they delivered what they were paid for -- and legally, appearance is the key to conflict of interest.  If this doesn't wake up Cochise County voters to the risk of their government being for sale, nothing will.

The problem began when a proposed rewrite of County water regulations was before the Planning & Zoning Commission.  CCIPRA writeups pointed out that problem.  Then the rewrite went to the County Supervisors, and CCIPRA writeups followed that change in focus.

What follows is based on 1) CCIPRA writeups covering the Commission problem, 2) CCIPRA writeups after the problem went to the Supervisors, and 3) the aftermath.  None of the writeups did any good in the sense of making Call, Weissler, or Cervantes obey to Arizona's conflict of interest laws; but the writeups did expose Call, Weissler, and Cervantes as politicians whose votes on public boards matched their private financial interests.  What citizens do with the information is up to them.

1, For Commissioners Weissler and Cervantes:
http://littlebigdog.net/ConflictOfInterest.htm

2, For Supervisor Call:

I.  CALL HAS A CONFLICT OF INTEREST

A.  Call is the paid Executive Director of The Cochise Water Project, which advocated the proposed water regulations.  Three questions determine if a conflict of interest exists:
.    1.  Will the decision affect an interest of the officer?
.    2.  Is the interest pecuniary?
.    3.  Is the interest not statutorily designated as remote?
To all three questions, Call would have to answer Yes.  He has a conflict of interest.

B.  The definition of conflict of interest

1.  A conflict of interest is one kind of appearance of corruption.  A Supreme Court case says there need not "be actual corruption ....  the statute is more concerned with what might have happened in a given situation than with what actually happened.  It attempts to prevent honest government agents from succumbing to temptation by making it illegal for them to enter into relationships which are fraught with temptation."  See
. http://www.leagle.com/decision/1961884364US520_1789.xml/U.%20S.%20v.%20MISSISSIPPI%20VALLEY%20CO

2.  The reason appearance is the test is that nobody can prove or disprove a person's assertions about his inner thoughts.  If a politician can escape the appearance of corruption simply by saying "Trust me, I'm virtuous," then laws against corruption might as well not exist.   But in America, citizens don't have to trust a public servant's virtue; our system requires public servants to avoid certain opportunities for corruption.

3.  Having a conflict of interest is not a crime.  I would even view it as an opportunity for a public servant to show how ethical he is, by publicly choosing to represent the public, not an outside group.  That's a display which any public servant should be glad to make.  Call should step aside on this issue; it won't affect his participation on other issues.

4.  Ignoring a conflict of interest is a misdemeanor, and a felony if the violation is intentional or knowing.  Either way, the politician must forfeit his or her office.  See
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00510.htm&Title=38&DocType=ARS

5.  For County Supervisors, a special statute has an even tougher test:  "A supervisor shall not vote upon any measure in which he, any member of his family or his partner, is pecuniarily interested."  See
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00222.htm&Title=11&DocType=ARS

6.  Upon taking office, every Supervisor, Commissioner, and employee of the Planning Department or the County Attorney, is supposed to be told how to avoid a conflict of interest.  See
. https://www.azag.gov/sites/default/files/sites/all/docs/sgo/PublicServiceOrientation.pdf
Page 16 in that document says there's a conflict of interest if the answer to the following questions is Yes:
.  "When determining whether a conflict of interest exists, public officers should evaluate the following three questions:
.    "1.  Will the decision affect, either positively or negatively, an interest of the officer or a relative? ...
.    "2.  Is the interest a pecuniary or proprietary interest? ...
.    "3.  Is the interest one that is not statutorily designated as a remote interest?"

C.  Here's Call's conflict of interest:

1.  Question 1 above is "Will the decision affect, either positively or negatively, an interest of the officer ... ?" Supervisor Call's answer must be Yes, because his paid job at TCWP includes advocating the new water regulations.  An interview quoting Call doing his job includes:  TCWP "supports new codes for municipalities to require native plants and trees for landscaping, water-saving appliances, commodes, waterless urinals, insulation of hot water lines, whole-house manifolds and hot-water on-demand recirculating systems in any new home construction, Call said. The county is undergoing the process of adopting such codes and he would like to see cities such as Tombstone and Bisbee require them for new construction.  Just how many acre feet will be saved is unknown, but if the Water Project's programs can be implemented and are successful, it's possible that 1,300 acre feet a year within the subwatershed can be saved, he said."  The Project's programs are what's advocated in the new water regulation.  See the article at
http://www.svherald.com/content/shar-porier/2013/05/22/353553

2.  As to question 2, Call's interest is pecuniary -- cash. He won't tell me how much he makes as Executive Director of TCWP, but I've heard that the max authorized for his position was $95K a year, though he might take only a portion of that because he's only part time.  For comparison purposes, the P&Z Commissioners who have the same conflict of interest -- Weissler and Cervantes -- each get $45,000 a year (Weissler, via payments to her husband) from groups pushing the water proposal; both Weissler and Cervantes were appointed to the Commission by Call, and Cervantes works directly under Call at TCWP.

3.  As to question 3, Call's interest is substantial.  State law says an interest is "substantial" if it's not listed as "remote."  A paid officer of a nonprofit corporation has a substantial interest, because the list of remote interests includes NONsalaried officers of nonprofit corporations.  See
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00502.htm&Title=38&DocType=ARS
And of course under ARS 11-222, Call's interest need not even be substantial.

D.  This isn't Call's first conflict of interest.

1.  In October 2013, he wrote to the County on behalf of the Upper San Pedro Partnership and The Cochise Water Project saying "We look forward to Cochise County ... being an active participant in ... protecting our valuable water resources."  See
. http://agenda.cochise.az.gov/docs/2013/BOS/20130625_460/1335_Letters%20of%20Support.pdf

2.  Call went so far as to tell the head of the County Planning Department what his "colleagues" want, his "colleagues" apparently being other members of groups pushing the water proposal.  Here's Call's letter:
http://littlebigdog.net/PatCallInstructsBeverlyWilson.jpg

II.  SUPERVISOR CALL ALSO HAS A "CONFLICT OF COMMITMENT"

A.  A "conflict of commitment" is like a conflict of interest, but concerns time instead of money.  See
http://nau.edu/Comptroller/Conflict-of-Interest/examples/
which includes:
.  "Conflicts of commitment are those in which academic, professional and other obligations of an employee preclude the employee from spending the time required for her/his full-time commitment to the University.  Some examples include:
.     "membership by an employee on multiple boards ... could take that employee away from her/his job ... to the extent that the employee's full-time job obligations ... are not met;
.     "employment by another entity which is intended to be part-time, but which develops into a job which interferes with full-time duties ...."

B.  Supervisor Call has too many jobs to do justice to them.  The page at
http://cochise.az.gov/cochise_board_supervisors.aspx?id=910
lists many of Call's jobs, including Chair of the USPP, but oddly doesn't list his job as Executive Director of TCWP.  Sometimes he even works for other governments; see the newspaper article at
http://www.svherald.com/content/adam-curtis/2013/05/27/353865
County Supervisor Call is administering Sierra Vista's toilet rebate program.  Even if his loyalties weren't divided, he can't do justice to his many jobs.

3, The aftermath

"We all imagine ourselves to be simultaneously clear-sighted and impenetrable; but, except when blinded by some infatuation, other people can see through us just as easily as we can see through them."  Aldous Huxley, The Devils Of Loudun, Chapter 4.

I.  Call, Cervantes, and Weissler aren't fooling anybody about money

A.  Weissler's husband makes $45,000 a year at the Friends Of the San Pedro River, Cervantes makes $45,000 a year at The Cochise Water Project, and $45,000 a year is an an educated guess at Call's salary at the Project.  Cervantes is subordinate to Call at the Project, and Call nominated Cervantes and Weissler to the Commission.

B.  "Any public officer ... who has, or whose relative has, a substantial interest in any decision of a public agency shall ... refrain from participating in any manner ... in such decision." ARS 38-503(B), at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00503.htm&Title=38&DocType=ARS

C.  "A.  A person who:
.  "1. Intentionally or knowingly violates any provision of sections 38-503 ... is guilty of a class 6 felony.
.  "2. Recklessly or negligently violates any provision of sections 38-503 ... is guilty of a class 1 misdemeanor.
"B.  A person found guilty of an offense described in subsection A ... shall forfeit his public office".  See ARS 38-510 at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00510.htm&Title=38&DocType=ARS

II.  Weissler isn't fooling anybody about abuse of power

A.  Commissioner Weissler has, as Chair, violated the Commission Bylaws to block timely discussion of her conflict of interest. She says she can interpret the Bylaws to mean the opposite of what they say.  She has never offered a legal justification for her novel theory.  In my experience, when the County doesn't argue the law, it's because they know the law is against them.

B.  Any Commissioner may be removed by the Board Of Supervisors "for neglect of duty, inefficiency, or misconduct in office".  See Section 2 of the ordinance establishing the Commission, by scrolling down to page 3 at
http://www.littlebigdog.net/P&ZOrdinance.pdf

III.  County employee Beverly Wilson has been dragged down too.  When I followed Planning Department procedure and asked the Department to forward to the Planning & Zoning Commissioners an email about conflict of interest, Planning Department head Beverly Wilson actually stalled my email:  "Mike J asked me to send the same to the PnZ Commission -- I've stalled for Adam's opinion" (Adam being deputy county attorney Adam Ambrose).  See
http://littlebigdog.net/BeverlyWilsonStalls.jpg


Section II.  The ConflictOfInterest website at
http://littlebigdog.net/ConflictOfInterest.htm

$45,000 a year:  Does it create a CONFLICT OF INTEREST?

NOTE:  after all of the events discussed below were over, the husband of Cochise County Planning & Zoning Commissioner Liza Weissler quit his job at the Friends of the San Pedro River, thereby eliminating Weissler's financial conflict of interest.

Cochise County Planning & Zoning Commissioners Liza Weissler and Tim Cervantes may have a conflict of interest as to a proposal that's pending before the Commission.  Organizations advocating the proposal pay $45,000 a year into Weissler's and Cervantes's households, while Cervantes and Weissler discuss the proposal at the Commission.  Weissler and Cervantes should voluntarily disqualify themselves from voting on or discussing the proposal.

This is not an accusation that a crime has been committed, it's an acknowledgment that human beings aren't capable of being fair judges in their own cases.  Weissler and Cervantes, being human, would be tempted to rule that "$45,000 a year can't possibly tempt me, not one bit."  However, "conflict of interest" laws are aimed at keeping public servants out of temptation's way.  That's why Weissler and Cervantes should disqualify themselves from anything to do with the water proposal.

I.  People, proposal, pay

A.  The Cochise County Planning & Zoning Commission has for months discussed a proposal to impose Sierra Vista water usage rules on rural homes near Sierra Vista.  The proposal will come to a vote on January 8, 2014.

B.  Commissioner Liza Weissler, the chair of the Commission, has persistently pushed the proposal, and steered discussion away from "Should the proposal be passed at all?" to "What should the ordinance say?"  Liza's husband Robert is Executive Director of the Friends of the San Pedro River (FSPR), which pays him about $45,000 per year.  Speaking on behalf of the FSPR at Commission meetings, he, like Liza, has passionately advocated the proposal.

C.  Commissioner Tim Cervantes is Administrative Director of The Cochise Water Project (TCWP), which pays him about $45,000 per year.  TCWP favors the proposed ordinance.  For background, see
. http://www.azfoundation.org/InitiativesImpact/EnvironmentSustainability/CochiseWaterProject.aspx

D.  Many local water groups share membership and funding.  See Note 1.

II.  What is conflict of interest?

A.  Concept

1.  In ordinary elections, a citizen can vote for her own self-interest, however she sees it.  That's politics in a democracy.  But a public body -- even an unelected body like the P&Z Commission -- is supposed to act solely in the public interest.  A member shouldn't sell her vote, or look like she might be, or put herself in a situation where she's tempted to. When money -- say $45,000 a year -- is at stake, a person can't trust her own motives.  Whether a person is for or against any particular issue, she can't give the appearance that her vote is for sale.  Respect for the law and her good name requires her to withdraw from such a situation.

2.  A conflict of interest can exist if a public body is to make a decision in which a member has an "interest."  "Interest" doesn't mean "curiosity," it means that a decision will have an actual and specific effect on the member.  An interest may or may not be financial.  An interest may be required to be substantial, or not.  If a conflict exists on an item, a board member should disqualify herself from discussing or voting on that item only. Participation in other items is not affected.

3.  An official who disqualifies herself is showing integrity.  "Public officials should avoid situations where their professional or financial concerns might conflict with the unbiased performance of their duties....  '... impairment of impartial judgment can occur in even the most well-meaning men when their personal economic interests are affected by the business they transact on behalf of the Government'."  See paragraph 8.2.1 in the Conflict Of Interest section of our Attorney General's Agency Handbook, at
. https://www.azag.gov/sites/default/files/sites/all/docs/agency-handbook/ch08-2013.pdf
For a few more discussions of conflict of interest, see Note 2.

B.  Laws

1.  The Arizona law, ARS 38-503(B), has a "substantial interest" test which applies to public officers and their spouses:  "Any public officer ... who has, or whose relative has, a substantial interest in any decision of a public agency ... shall refrain from participating in any manner ... in such decision."  See
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00503.htm&Title=38&DocType=ARS

2.  The Cochise County resolution that created the Commission has a tougher "any interest" test in Section 6:  no Commissioner shall "participate in the Commission's discussions, hearings or vote on any matter in which he has a financial or closely related personal interest."  See
http://www.littlebigdog.net/P&ZOrdinance.pdf
See Note 3.

3.  "No public officer or employee may receive ... directly or indirectly compensation other than as provided by law for any service rendered or to be rendered by him personally in any ... matter which is pending before the public agency of which he is a public officer or employee."  See ARS 38-505(A) at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00505.htm&Title=38&DocType=ARS

4.  Violations of state law may lead to a misdemeanor conviction, and forfeiture of office.  See ARS 38-510(A)(2) and (B) at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00510.htm&Title=38&DocType=ARS

III.  The conflicts of interest in this case

A.  The Commission minutes from its November 2013 meeting are at
. cochise.az.gov/uploadedFiles/Planning_and_Zoning/111313%20PNZ%20Minutes%20Final.pdf

B.  At the Commission's November meeting, neither of the Weisslers identified themselves as married, or stated that Robert's position as the FSPR's Executive Director was paid.

C.  At that meeting, Robert Weissler "expressed support on behalf of the Friends of the San Pedro and advocated for the regulations to protect the San Pedro River ...."  See p. 4 in the minutes. Liza Weissler and Tim Cervantes joined in the discussion.  See p. 6 in the minutes.  As to the Weisslers' comments, see Note 4.

D.  The November 26 CCIPRA update email asked that the possibility of conflict of interest be investigated.  See
http://littlebigdog.net/ConflintPossibleAtP&Z.htm

E.  Before the Commission's December meeting, Liza Weissler asked the County Attorney's Office for advice about conflict of interest.  Deputy county attorney Adam Ambrose gave her (but apparently not Cervantes) an undated letter sometime before the meeting.  The letter asserted that there was no conceivable conflict of interest for Liza.  A copy is online at
http://littlebigdog.net/AdviceLetter.pdf
The letter is discussed at length in Section IV below, and for some odd features of the letter, see Note 5.

F.  At the Commission December meeting, both Weisslers and Tim Cervantes again advocated the proposed ordinance.  Robert Weissler disclosed that he worked for the FSPR, and Liza disclosed that they were married.  This was not full compliance with the letter's advice about disclosure, nor did the letter's advice fully follow state law.  See Note 6.

G.  At the December meeting, Liza Weissler repeatedly steered the discussion toward "which alternative shall we pass?" and away from "should we pass anything?"  The minutes are not yet published, but you may, depending on your computer, be able to see Planning Department notes of the discussion; see Note 7.

IV.  The letter from deputy county attorney Ambrose

A.  The letter at
http://littlebigdog.net/AdviceLetter.pdf
says the attorney could not conceive that a conflict exists:  "I can conceive of no pecuniary or proprietary benefit whatsoever, either direct or indirect, that you or your husband would gain by your voting either way on this question."  Somebody's organ of conception is undeveloped.  See Note 8.

1.  Any non-attorney can probably conceive that if Liza doesn't vote for a proposal her husband's employer advocates, he would lose favor at work.  The risk of votes being influenced by outside factors is why "virtually every State has enacted some type of recusal law, many of which ... require public officials to abstain from voting on all matters presenting a conflict of interest."  That's the US Supreme Court talking, in 2011, on p. 7 of the Carrigan case:
http://www.supremecourt.gov/opinions/10pdf/10-568.pdf
By April 2013, all 50 states, plus DC and the Virgin Islands, had conflict of interest laws; see their texts at
. http://www.ncsl.org/research/ethics/50-state-table-conflict-of-interest-definitions.aspx

2.  In particular, Liza's husband Robert should have been aware of a potential problem, because FSPR has a written policy about conflicts.  For any situation at all which "may create the appearance of a conflict, or present a duality of interests," FSPR prohibits its board members from discussing or voting on a matter, or even attempting "to exert his or her personal influence with respect to the matter, either at or outside the meeting."  Robert had to sign off as reading this policy; see
http://www.sanpedroriver.org/FSPR_ConflictPolicy_v3.pdf
FSPR board members even discussed the policy with Robert present: "There was discussion of a potential conflict of interest for Pat Call who is the chairman of the USPP and also the Director of the Cochise Water Project;" see pp. 2-3 at
http://www.sanpedroriver.org/Oct_2012_FSPR_minutes.pdf

B.  The letter suggests that disqualifying Liza Weissler for a conflict of interest "would raise serious questions about infringement of rights ... under the first amendment to the United States Constitution, but as that question is not before me, I do not address it herein."  That's a spurious suggestion, which can do nothing but obstruct serious discussion, because the US Supreme Court rejected such suggestions in 2011.  See
http://www.supremecourt.gov/opinions/10pdf/10-568.pdf
For a detailed discussion of that case, see Note 9.

C.  The letter is incorrect about the legal precedents it cites

1.  Attorneys like to argue by pointing to written opinions that agree with them.  However, before citing an opinion, an attorney should make sure its facts are similar to those being discussed; checking its facts requires actually reading the case; and reading a case includes examining the other cases which it cites.  The attorney letter went wrong by violating all three of those principles.

2.  The attorney letter cites cases whose facts aren't like ours.  The letter cites four cases; I've discussed them in some detail in the Notes.  One of the cases, Yetman, involves a conflict of interest that is very tenuous, unlike the direct $45,000 payment into a Commissioner's household.  The other three cases -- Hughes, Shepherd, and McLoughlin Realty -- involve people on government boards and were also government employees -- not comparable to our situation, where Robert Weissler and Tim Cervantes are employed by private groups.  In short, the letter doesn't sufficiently examine the cases it cites.  A fuller discussion is in Notes 10 through 13.

3.  The cases cited in the attorney letter point to other cases, which either don't support the letter's conclusion, or outright contradict it.  Yet the attorney letter ignores these cases. One of the cases, Arizona Farmworkers Union, is about a remote interest, and a conflict of interest wasn't found; yet the officials had the decency to resign because of the appearance of possible conflict.  The other three cases are Bushnell, Stigall, and Mississippi Valley Generating Co.  They involve government officers who had contacts with outside companies, the pattern that exists in our facts, and disqualification for conflict of interest was appropriate.  For a discussion of all four cases, see Notes 14 through 17.

V.  Conclusion

A.  Commissioners Weissler and Cervantes have a conflict of interest.  They should voluntarily disqualify themselves from discussing or voting on the proposal at issue.

B.  The next Commission meeting is on January 8, 2014. There's no way to turn back the clock and undo the discussions which were tainted by a conflict of interest.  The Commissioners could decide to reject the entire proposal because the actions of its proponents have tainted the proceedings.  Failing that, the Commissioners should re-do all parts of the discussion in which Weissler or Cervantes took any part.  The public deserves better treatment than mere acquiescence in tainted proceedings.

VI.  Notes

1.  The intertwining of local groups is illustrated in this excerpt from Robert Weissler's report at the October 2012 meeting of the FSPR board of directors:  "At the recent USPP PAC (Upper San Pedro Partnership advisory committee) meeting, the Cochise Water Project filed its application for a seat at the table.  Cochise Water Project brings funds to the partnership -- as we all know it is the same money we received, namely Walton funds.  There was discussion of a potential conflict of interest for Pat Call who is the chairman of the USPP and also the Director of the Cochise Water Project."  See
http://www.sanpedroriver.org/Oct_2012_FSPR_minutes.pdf
Accessing FSPR minutes may be difficult.  The FSPR website for minutes --
http://www.sanpedroriver.org/minutes.shtml
-- says "Minutes have been pulled from the web."  However, as of December 29, you could still directly access the minutes from May 2012 through March 2013 by simply substituting the month and year into the text of the October 2012 link.  For example, you can get the January 2013 minutes at
http://www.sanpedroriver.org/Jan_2013_FSPR_minutes.pdf
If the minutes from May 2012 through March 2013 become inaccessible, I've saved copies of them.

2.  For more general information, the Attorney General's office has posted a slide show at
. http://www.azftf.gov/PublicNoticeAttachmentCenter/03-02-2009%20SCA%20Attachment%207%20a.pdf
For a discussion of conflict of interest in a current political fight, see
. http://www.azcentral.com/insiders/laurieroberts/2013/11/12/has-aps-bought-gary-pierces-vote-on-solar-controversy-and-if-so-shouldnt-we-know-about-it/
As that article illustrates, "conflict of interest" arguments can turn up in any political situation.  In my opinion, the arguments should be considered on their legal merits, without regard to the particular political issue.  By raising the bar for "conflict of interest" decisions, we will raise the level of politics.

3.  The ordinance creating the Commission has a strong "any interest" test for conflict of interest; the bylaws adopted for the daily operations of the Commission were drafted defectively.  The bylaws -- at
. http://cochise.az.gov/uploadedFiles/Planning_and_Zoning/By-Laws%202012.pdf
-- say "All Members and Officers shall be governed by the Conflict of Interest Policy set forth in Title 38, Chapter 3, Article 8 of the Arizona Revised Statutes" -- which boils down to ARS 38-503(B) and its "substantial interest" test.  In this contest, the "any interest" test wins.  Procedural bylaws cannot modify the ordinance creating the Commission.  Also, there's no problem with the County's "any interest" test being tougher than the state's "substantial interest" test; the County can set a higher test, just not a lower.

4.  The Weisslers' comments sometimes went beyond what could be justified by facts.  Robert's comments included "Is reckless or mindless use of water even socially acceptable? ...  Is ignorance an excuse?" -- as if all disagreement with him must be reckless or stupid.  Listen at
http://littlebigdog.net/WeisslerPNZNov13.mp3
Liza's comments included "We're not telling people they must use less [water], we're telling, we're making it possible for them to use less" -- as if rural people, who already use less water than urban people, can't or won't use less water without orders from urban areas. Listen at
http://littlebigdog.net/LizaWeisslerIncrediblesPNZNov13.mp3
It's important to remember that the tone of Robert's and Liza's comments isn't what creates the conflict of interest; the conflict arises from the FSPR paying $45,000 a year to Robert, while Liza advocates the FSPR's project at the Commission.

5.  Three points about the attorney letter

a.  I did not see the attorney's letter before the meeting, but Liza voluntarily gave me a copy immediately after the meeting adjourned.  It is reported to me that the attorney has stated that the letter also applies to Commissioner Cervantes; however, I do not know if Cervantes has seen the letter.  As to the letter's "Confidential - Attorney/Client Privilege" language, it's not clear that an attorney-client relationship exists with an individual Commissioner instead of the Commission as a body, but if attorney-client privilege did exist, Liza gave it up by voluntarily handing me the copy.

b.  The letter restricted its advice to the one statute that Liza asked about, but an attorney advising a public servant should not play a game of Whack-A-Mole, saying "Nope, not breaking that law ... not that one ... not that one" to every law which the servant asks about, without mentioning any law the servant doesn't ask about, even though the attorney knows, or should know, that a law the servant doesn't ask about is relevant.

c.  The letter makes it difficult for Weissler to use the defense allowed by ARS 38-510(D):  "that the interest ... was a remote interest."  A claim that $45,000 per year absolutely could not possibly affect Liza Weissler's vote is hard to replace with a claim that $45,000 is an interest, but just not much of one.

6.  The Weisslers' December disclosure of their marriage, and Robert's employment by the FSPR did not satisfy the statutory requirements for written disclosure.  See ARS 38-502(3) at
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00502.htm&Title=38&DocType=ARS

7.  The Planning Department's own comments on the December P&Z Commission discussion are online at
http://littlebigdog.net/ProposedWaterRegs.odt
The comments show who said what.  Regrettably, the .odt page may be garbled if you look at it online; if so, you might try downloading and saving the page, then opening it by a program that reads Microsoft .docx or Open Office .odt files.  Here's a link to a program that will save the day:
http://www.openoffice.org/why/why_odf.html
and here's a Microsoft program that may be helpful:
. http://office.microsoft.com/en-us/word-help/use-word-to-open-or-save-a-document-in-the-opendocument-text-odt-format-HA010355766.aspx
8.  In the attorney's defense, he probably did not know when he wrote the letter that Robert's pay from the FSPR was $45,000 a year.  If the attorney had known that, he would surely have made a specific argument that $45,000 in family income per year could not possibly tempt anyone.

9.  The Carrigan case

a.  As to voting, the case says the "First Amendment ... has no application when what is restricted is not protected speech... . But how can it be that restrictions upon legislators' voting are not restrictions upon legislators' protected speech?  The answer is that a legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal.  The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it....  the legislator casts his vote 'as trustee for his constituents, not as a prerogative of personal power.'  In this respect, voting by a legislator is different from voting by a citizen."  Carrigan pp. 3 and 8.

b.  As to discussions before voting, the case notes that if the prohibition on voting is constitutional, then so is the prohibition on discussing:  "And with good reason.  Legislative sessions would become massive town-hall meetings if those who had a right to speak were not limited to those who had a right to vote.  If Carrigan was constitutionally excluded from voting, his exclusion from 'advocat(ing)' at the legislative session was a reasonable time, place and manner limitation."  Carrigan pp. 3-4.

10.  Yetman v. Naumann upholds ARS 38-503(B) against a challenge for vagueness (an argument not made here), and its facts are not comparable to ours.  The defendant was a member of a public body which regulated copper companies, but was also employed by a firm that did business with those companies.  The possible conflict was that if the board favored copper companies, his firm might do more business with them.  The court found this relationship tenuous -- as it is, compared to the relationships in our case, in which 1) Robert Weissler, Liza's husband, is paid by a group that advocates a measure before the Commission, and has spoken to the Commission on behalf of his group, and urged the Commission to pass the measure, and 2) Tim Cervantes is paid by a group that advocates a measure he will vote on.  For Yetman's full text, see
http://www.leagle.com/decision/197233016ArizApp314_1241

11.  The Hughes case, the attorney letter misrepresents.  The letter says "a county sheriff did not have a conflict of interest in investigating the alleged criminal conduct of his sister despite his sister's risk of economic loss if convicted."  But the court never made a finding about economic loss, because no evidence about any financial loss was produced at trial.  See
http://www.leagle.com/decision/200287150P3d821_1869

12.  The Shepherd case involved county supervisors who were Navajo, and either served on the Navajo Tribal Council or were employed by the tribe, and received no more benefit from a measure they passed than anyone else living on the reservation.  That's nothing like our case.  See
http://www.leagle.com/decision/1993240177Ariz63_1225

13.  The McLoughlin Realty case involved a County Supervisor who was also a County employee -- unlike our facts.  See
. https://www.courtlistener.com/arizctapp/eu1b/emmett-mcloughlin-realty-v-pima-county

14.  Arizona Farmworkers Union:  two members of a public board were challenged for conflict of interest.  The court found their interest to be remote as described in Yetman, so it's no precedent for our case, where the interest is not remote at all. Even so, the challenged member had the decency to resign after the appearance of conflict was pointed out.  See
. http://www.leagle.com/decision/1988569158Ariz411_1484.xml/FARMWORKERS%20UNION%20v.%20AGR.%20EMP.%20REL.%20BD

15.  Bushnell:  Arizona's Director Of Insurance had a conflict of interest because he took out a mortgage loan from an insurance company that he regulated.  The court said "The possibilities of pressure and influence between a lender and a borrower who owes a considerable sum of money are infinite ....  The fact that there was no evidence herein that the mortgage transaction ... was anything other than a regular business transaction does not change the fact that such relationships ... are fraught with temptation, pressure and the possibilities of corruption".  See
. http://www.leagle.com/decision/1967411102Ariz309_1336.xml/BUSHNELL%20v.%20SUPERIOR%20COURT%20OF%20MARICOPA%20COUNTY

16.  Stigall:  a California contractor was also on a public board that was drafting a contract which he wanted.  He resigned from the board just before the board gave him the contract.  The court found a conflict of interest because "the object of the enactments is to remove or limit the possibility of any personal influence, either directly or indirectly which might bear on an official's decision ....  The legislation ... seeks to prohibit a situation wherein a man purports to deal at arm's length with himself ...."  See
. http://www.leagle.com/decision/196262358Cal2d565_1572.xml/STIGALL%20v.%20CITY%20OF%20TAFT

17.  US v. Mississippi Valley Generating Co. says that conflict of interest statutes are "directed not only at dishonor, but also at conduct that tempts dishonor....  an impairment of impartial judgment can occur in even the most well-meaning men when their personal economic interests are affected by the business they transact on behalf of the Government....  the statute is more concerned with what might have happened ... than with what actually happened.  It attempts to prevent honest government agents from succumbing to temptation by making it illegal for them to enter into relationships which are fraught with temptation."  See
. http://www.leagle.com/decision/1961884364US520_1789.xml/U.%20S.%20v.%20MISSISSIPPI%20VALLEY%20CO