$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