On July 8, 2014, appointed deputy county attorney Britt Hanson wrote an email attempting to justify various violations of law that occurred in the runup to a July 9 meeting of the Cochise County Planning & Zoning Commission.  Two issues were involved:  first, a county ordinance requires that the Building Board consider any changes to the county building code, but the Commission was going to consider some proposed changes even though the Building Board had not met about them; second, when a Building Board meeting was set to consider the changes, public notice of the meeting did not satisfy Arizona's Open Meeting Law.  A few hours after receiving Hanson's email (from a third person), I circulated an answer to him (and to all the people he had written to, and more) gutting his fallacies.  Below are both letters, first Hanson's, then mine.  The outcome of the letters was that the County declined to follow Britt's advice; instead, the County pulled the proposed changes from the agenda of the July 9 Commission meeting, and now the County will likely try a restart, this time following the law.  That outcome is not surprising; County officials almost always follow a county attorney's advice about the law, no matter how bad it is; but there is a time when officials just can't turn a blind eye to staggeringly bad advice.  Now to the letters.

HANSON'S LETTER

. Much ado about nothing. There is no reason whatsoever that the Commission cannot consider the proposed changes to the Owner/Building Opt Out provisions.
. First, there was no reason that the changes needed to be considered by the Building Code Advisory Board (BCAB) at all. It was purely discretionary. Here are the statutory duties of the BCAB which, as you can see, have nothing to do with determining the scope of the building code. It’s nice that they considered it, but not necessary.
11-862. Advisory board; appointment; terms; duties / A. Any code adopted pursuant to this article shall contain a provision for an advisory board consisting of at least five members in order to determine the suitability of alternative materials and construction and to permit interpretations of the provisions of such code.
. Second, even if the County was required to run the opt out provisions past the BCAB, there still is no requirement that the BCAB needed to consider them before the Commission. (The BCAB is created to advise the BOS, not the Commission)
. Third, maybe it would be better to have posted the BCAB agenda on the BCAB webpage, but posting instead in Legal Notices is hardly fatal for OML purposes.
. Fourth, even if for the sake of argument the posting violated the OML, we need to remember that at worst it would render advice to the BOS null as legal action—but that kind of advice isn’t legally binding action anyway.
. There are probably additional reasons why Mr. Jackson’s complaint has no merit, but reasons 1 through 4 are all I have time for today.

MY EMAIL

. Mr. Ortega et al., here's my response to Britt Hanson's email about the role of the Building Board in making changes to the Building Code.
. Britt makes four points. I'll discuss them in order, and also refute his conclusion.

. I, Britt notes that ARS 11-862 does not require the Board to consider proposed changes to the Building Code. Of course it doesn't; it merely requires (not suggests) the formation of a Board, and leaves the details to the County. Our Supervisors passed the both the ordinance establishing the Board, and the Board's Bylaws. The establishing ordinance is at
. . http://cochise.az.gov/uploadedFiles/Planning_and_Zoning/Proposed%20Ordinance%20-%20Building%20Safety%20Advisory%20and%20Appeals%20Board%209-10-08%20PZC%20Hearing.pdf
and the Bylaws are available via the Bylaws link at the bottom of
. . http://agenda.cochise.az.gov/agenda_publish.cfm?id=&mt=BOS&get_month=6&get_year=2013&dsp=agm&seq=1336&rev=0&ag=459&ln=23550&nseq=1337&nrev=0&pseq=&prev=#
. In the establishing ordinance, Section 1 requires the Board to "act as an advisory board to the Building Official and the Planning Department on any proposed revisions or additions to the adopted Cochise County Building Safety Codes," and Section 4.3 says that the Building Board "shall act as technical advisory in the formation and development of revisions or additions to the adopted Building Codes and Ordinances in the County."
. Is Britt seriously suggesting that because the statute does not contain those county ordinances, the Board can ignore the duties in them?

. II, Britt argues that there is no requirement for the Building Board to consider proposed changes before the Commission considers them, and that the Board is created to advise the BOS, not the Commission. Britt is wrong again.
. As noted above, the Cochise County establishing ordinance requires the Board to "act as an advisory board to the Building Official and the Planning Department." In the Bylaws, Article 4.7 says "All recommendations shall be forwarded by the Secretary to the Planning Director and Board of Supervisors." Advising the Supervisors appears to have been a secondary consideration; in the Department's presentation to the Supervisors in favor of creating the Board, page 6 of the slide show available via the "Final" link at the bottom of
. . http://agenda.cochise.az.gov/agenda_publish.cfm?id=&mt=BOS&get_month=6&get_year=2013&dsp=agm&seq=1336&rev=0&ag=459&ln=23550&nseq=1337&nrev=0&pseq=&prev=#
omits any recommendations to the Supervisors, and says the Board will "advise the Building Official and the Planning Department on any proposed revisions or additions to the Cochise County Building Safety Codes."
. In short, the Board does advise the Supervisors, but also advises the Planning Director, the Building Official, and the Planning Department.
. Also, as to advising the Commission, nobody is arguing that the Board should directly advise the Commission; but the Board's job includes advising the Department, and when should that job be done? Well, it would make no sense if the Board advised the Department only after the Department has brought a proposal to the Commission.

. III, Britt argues that "maybe it would be better to have posted the BCAB agenda on the BCAB webpage, but posting instead in Legal Notices is hardly fatal for OML purposes." Actually, failure to post an agenda on the Board webpage is specifically fatal under the OML: "The public bodies of this state ... shall ... Post all public meeting notices on their website," ARS 38-431.02(1)(b) at
. . http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00431-02.htm&Title=38&DocType=ARS
Does Britt think it's merely "better" to follow this statute, but "hardly fatal" to violate it? Then he should be informed that "any person or entity charged with the interpretations of [the OML] shall construe this article in favor of open and public meetings," ARS 38-431.09(A) at
. . http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00431-09.htm&Title=38&DocType=ARS

. IV, Britt argues that if the posting we are discussing violated the OML, "at worst it would render advice to the BOS null as legal action -- but that kind of advice isn't legally binding action anyway." Britt seems to be arguing that a statute requiring the Board to give advice to the OML and the Department can be ignored at will, merely because advice isn't legally binding. There are many laws requiring one entity to advise another; Britt's theory would nullify all of them.

. V. Britt concludes that "There are probably additional reasons why Mr. Jackson's complaint has no merit, but reasons 1 through 4 are all I have time for today." I'll conclude that if there are any reasons why my complaint has no merit, they must be additional to the reasons in his email, because the reasons in his email contradict the law, the facts, and the "legislative history" behind the Building Board. I invite Britt to make serious arguments, citing the law, instead of what he has produced so far.