$45,000 a year: Does it create a
CONFLICT OF INTEREST?
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.
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.
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
I. People, proposal, pay
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.
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.
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
D. Many local water groups share membership and funding. See Note 1.
II. What is conflict of interest?
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.
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.
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
For a few more discussions of conflict of interest, see Note 2.
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
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
See Note 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
Violations of state law may lead to a misdemeanor conviction, and
forfeiture of office. See ARS 38-510(A)(2) and (B) at
III. The conflicts of interest in this case
A. The Commission minutes from its November 2013 meeting are at
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.
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
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
The letter is discussed at length in Section IV below, and for some odd features of the letter, see Note 5.
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.
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
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.
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:
By April 2013, all 50 states, plus DC and the Virgin Islands, had conflict of interest laws; see their texts at
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
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
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
For a detailed discussion of that case, see Note 9.
C. The letter is incorrect about the legal precedents it cites
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.
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.
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.
Commissioners Weissler and Cervantes have a conflict of interest.
They should voluntarily disqualify themselves from discussing or voting
on the proposal at issue.
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.
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
Accessing FSPR minutes may be difficult. The FSPR website for minutes --
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
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
For a discussion of conflict of interest in a current political fight, see
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.
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
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.
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.
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
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
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.
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.
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.
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
7. The Planning Department's own comments on the December P&Z Commission discussion are online at
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:
and here's a Microsoft program that may be helpful:
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
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.
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.
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
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
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
13. The McLoughlin Realty case involved a County Supervisor who was also a County employee -- unlike our facts. See
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
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
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
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