CCIPRA is the

"Cochise County

Individual and Property Rights Association"

For more information, email HERE

or phone Kelly Savage 234-7086 or Joe Green 642-1651

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CCIPRA ACTION ITEMS lead off the page.

WHAT CCIPRA IS ABOUT follows that (and here's a link to our friends at Voters For Rural Values, where you can see what they're about.)

DETAILED INFO to put you to sleep is at the bottom of the page.

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RICHARD SEARLE BECOMES CHAIR OF THE BOARD OF SUPERVISORS!

On June 27, the Cochise County Board Of Supervisors voted to remove Call as Chair. Richard Searle's term as Chair starts on August 1.

This was Call's second major political defeat in June at the hands of the rural revolt. It was only the pressure from CCIPRA, VRV, the folks opposing the Smith Ranch, and other groups formed to keep city-style government from ruining the county, that lit a fire under the supervisors that they couldn't ignore. Well done, and give yourself a big hand! -- and if you aren't a member yet, now's a good time to join or form such a group in your neighborhood.

There are still some loose ends to mop up in the fight to save rural living:

-- 1, regularizing the rotation of the Chair, so that every Supervisor gets a turn during.

-- 2, restoring equal rights to every Supervisor, as far as being able to get discussion of items. This requires rescinding the voting procedure set up in Resolution 05-20.

-- 3, getting the backlog of items from Newman's district taken care of.

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ACTION ITEM

The Board skips its regular meeting on Tuesday, because that's July 4. There is NO meeting until July 11.

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PERPETUAL ACTION ITEM

KEEPING THE HEAT ON Cochise County gummint

You should be able to give input to any of the supervisors, and they should treat you with respect. After all, their base pay is about $60,000 a year -- 4 or 5 times what many hard-working people in rural Cochise County earn in a year.

The Board address is Bldg. G, 1415 Melody Lane, Bisbee AZ 85603, (that's also where the supervisors meet), and you can PHONE their office at 432 9200, or EMAIL them at:

----- Pat Call - pcall@co.cochise.az.us

----- Paul Newman - pnewman@co.cochise.az.us

----- Richard Searle - rsearle@co.cochise.az.us

Here's where the Planning & Zoning Commission meets:

Building G, at 1415 Melody Lane in Bisbee

You can mail the P&Z Commission at

Building E (not G, but E!)

1415 Melody Lane, Bisbee AZ 85603

And

-- you can TELEPHONE the P&Z Department at 432 9240

-- & EMAIL P&Z at PNZ@co.cochise.az.us

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WHAT CCIPRA IS ABOUT

CCIPRA exists to oppose big-money realtors and developers. After this beginning section, more specific concerns of CCIPRA are discussed.

Who owns county government?

On March 1, 2006, P&Z staffer Ron Durgin, by email, thanked Lynn Mattingly for his help with the new 3-phase building codes. Durgin's salary comes out of the revenues raised by the new building codes. Mattingly is with SACA, the Southeastern Arizona Contractor's Association. (Many county personnel are linked to SACA and "big realty." Pat Call tried to get Bob Kirk, the president of SACA, onto the P&Z Commission. Call's campaign manager was Judy Gignac, who runs Bella Vista Ranches and says the San Pedro watershed has lots of water.)

On March 8, Mattingly answered Durgin's email by sending him a list of questions that SACA wanted P&Z to be ready to answer at a Commission meeting. How cozy. One of Mattingly's questions was "After all the work to get the Codes adopted County-wide, isn't this effort a step backwards? How much time and effort has been expended to reverse the current, recently adopted requirements?"

That sounds like an argument that Board of Supervisors Chairman Pat Call made recently: a project in his district had begun, so must be finished. Sounds like a good principle. However, Call has a way of welshing on old promises that would stand in the way of profits for real estate developers and contractors.

One example is Call's welshing on his promise of a real evaluation of the new building codes. At the Planning & Zoning Department's quickie report, Newman pointed out that P&Z's report did not include any examination of the actual effect of the new codes on the community. Nonetheless, Call rushed the work session to a quick finish, welshing on his promise of a review and evaluation.

Another example of Call's welshing is that, before the infamous Resolution 05-20 was passed (see section III. Disenfranchising Voters in Supervisor Paul Newman's District, the big section at the end of this website), Call promised that 05-20 wouldn't be used to keep supervisors from stating their opinions, but Call has used it to muzzle Newman.

And remember P&Z staffer Ron Durgin's cozy relationship with SACA? In general, county government's relationship with the public is nowhere near so cozy. On March 27, P&Z's Judy Anderson issued an update on the code situation. She didn't mention the 3700 or so signatures on petitions against the new codes. Her letter was supposed to include the Mattingly/Durgin correspndence, but she "forgot" to attach it; getting it took a special request.

So who owns county government? A bunch of developers and contractors. A lot of them are very good people, who began by working hard for their money but got sucked into the machine. Now the facts about years of backroom deals, forgotten principles, and broken promises are being exposed, so maybe the people will retrieve their government soon.

* * * * *

Cochise County government is increasing its control over the county in two ways:

-- by imposing city-type zoning on rural people, and

-- by disenfranchising voters in supervisor Paul Newman's district.

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DETAILED INFO TO PUT YOU TO SLEEP

This section has a few pieces about the kind of thing that bothers CCIPRA members.

The April 4, 2006, Board Of Supervisors Meeting

At this meeting, Planning & Zoning proved it can't be trusted -- not by citizens, not by the Board Of Supervisors, not by anybody.

A little background

"Planning & Zoning" includes the P&Z Department and the P&Z Commission. The Department can propose new rules to the Commission, and if the Commission approves them, the Department then proposes them to the Board Of Supervisors. Nothing takes effect until the Board approves.

At the February 8 Commission meeting, the Department proposed a new series of letters and fines to citizens who may be building something without a permit. There would be up to four letters, each with an attached administrative fine. For the first letter, the fine would be $25. For a second letter, $100. For the third, $200. For the fourth, $400. (The Department calls the first letter a notice of violation; it calls the second letter the first letter; it calls the third letter the second letter; and it calls the fourth letter a notice of hearing. The Department is not noted for making things clear.)

The $25, $100, $200, and $400 administrative fines can be imposed even if a citizen has good reason for not obeying P&Z orders -- which can easily happen. For example, at the February 8 meeting, a citizen asked about fines and fees for building a simple dog shelter. A P&Z staffer answered for several minutes, then another staffer broke in with a contradictory answer. Obviously, citizens should not have to jump to obey orders written by confused, incompetent, or malicious bureaucrats.

Also, the $25, $100, $200, and $400 administrative fines are aimed at PUNISHING citizens who respond to a P&Z order within the time allowed by law, but not fast enough to satisfy P&Z bureaucrats. P&Z's desire to punish citizens is a major reason for the fines. For instance, on February 8, P&Z Commissioner Corey asked "why aren't we charging them [the public] more and why can’t we do it daily?" Corey even exclaimed "I DO want to be punitive!" Other P&Z people echoed Corey's sentiments. Finally P&Z's attorney explained that the law wouldn't let an administrative agency punish people. Corey's reaction: “That’s not what I wanted to hear.” Then the attorney himself immediately relapsed into talking about punishment -- Freudian slip city.

Why trust a branch of county government that doesn't understand the difference between the executive and judicial branches?

What the P&Z Department pulled on the Commission on February 8

Arizona law allows county governments to charge fees for services, if the fees are attributable to, and go toward the expense of, a specific service provided to the public, and if the fee does not exceed the cost of the service.

But P&Z wants to reach into your pocket so bad that it's ignoring the law in several ways.

On February 8, the Department said it wants some fees to pay for new employees -- that is, not to pay its present expenses at all, but to build an empire.

And P&Z doesn't want the money for specific services -- such as making copies of documents for you -- P&Z wants the money to pay for general bureaucratic overhead.

And the Department inflated the costs it wants you to pay. P&Z management developed an incredibly long list of subtasks, and had employees estimate the time for doing each subtask. The results were 8 pages long, and included obviously inflated numbers. For example, it supposedly takes an employee 15 minutes to find a lot on a county map, and 3 minutes to choose one name from a list of four. That's ridiculous.

Beyond that, the Department wants fees that exceed even the inflated costs. In the series of letters, the $25 fee exceeded the inflated $18.50 cost of employee time. The $100 fee exceeded an inflated $84.77 cost of time. The $200 fee exceeded an inflated $179.86. And the $400 fee exceeded an inflated $375.06.

Amazingly, the Commission approved the fees, even after P&Z staffer Weiland told them that "our county attorney says that in the case of a surcharge, it needs to be exactly equal to the price it costs the county to provide the service."

Why trust either the Department or the Commission, when they fake the facts and violate the law?

What the P&Z Department tried to pull on the Board Of Supervisors of April 4

At the Board meeting on April 4, the P&Z Department made its pitch for final approval of the new fees. The pitch included even more exaggerated claims about time. The costs that the Department told the Board were far greater than the costs the Department told the Commission. For the $25 letter, the Department boosted the claimed cost of employee time from $18.50 to $72.31! For the $100 letter, the claim was boosted from $84.77 to $145.56. For the $200 letter, the claim was boosted from $179.86 to $203.82. For the $400 letter, the claim was boosted from $375.06 to $524.29.

Even if the Department had made the boosts in good faith, the wild variations in the amount of the figures shows that the figures can't be trusted. When bureaucrats couldn't think clearly or do simple addition correctly before, why believe them now?

The Department's own conduct shows that the problem isn't mere incompetence; it's bad faith. At the April 4 meeting, the Department did not tell the Board that it was giving the Board bigger numbers than it gave the Commission. The Department also omitted the eight pages of numbers that it gave the Commission on February 8. The Board wouldn't know about the boosting of numbers, if a citizen had not blown the whistle.

After learning that the Department had changed its figures, supervisor Newman asked the Department to explain. The answer lasted three and a half minutes, and incoherently strung together a dozen or more subjects ranging from salaries to the Bell Curve. It was a classic example of a liar, caught pants down, trying to explain away the facts -- and amid the verbiage, the Department admitted inflating its costs to allow the big fees it wants to charge. The facts were "massaged" to suit P&Z's desires.

Why trust an agency that will lie to conceal its violation of the law?

The March 28 Board Of Supervisors Meeting

The Board voted unanimously to delay implementing the new building code in the middle part of the County. The new codes were set to start on April 1, but now they will be delayed for more meetings on the subject.

The Board also required Planning & Zoning to present an evaluation of how the codes have worked so far, in the part of the County where they were imposed first, the western area including Sierra Vista and Benson. (But the Board never required a real evaluation; the Board settled for the quicky that didn't address anything but how much money the county could collect from the public; this quicky report is described in the blue statement near the top of this website.)

Members of CCIPRA spoke in favor of the delay, before the unanimous vote in its favor.

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COCHISE COUNTY BUILDING CODES VERSUS COUNTRY LIFE

Cochise County's Planning and Zoning Commission and Department, and Board Of Supervisors, are catering to big-money real estate interests, in a way that will wipe out the rural way of life. County government is combining corruption and incompetence.

I. Some Attitude Problems In Local Gummint

A. In Cochise County Zoning, Whatever Isn't Allowed Is Prohibited

The egomania of the set of politicians presently slurping up your tax money is encouraged by the laws, in particular the Cochise County Zoning Regulations, Article 3, Section 307, which states:

"Any use not permitted in a district, either as a permitted use or as a special use, is specifically prohibited from a zoning district."

Somehow, "hatever isn't allowed is prohibited" doesn't sound like America. Maybe it will take more than just getting a new set of politicians; maybe we should kick out ANY politicians who don't immediately dump laws that say "if we don't allow it, you can't do it."

B. Cochise County Has a Government Of Men, Not Laws

In the 11/18/05 Valley Vista, a front-page article bylined Michael Sullivan reports on possible new ways of enforcing county zoning regulations. The statements below are based on that report.

At present, fines for violating building permits run between $75 and $150; the zoning department wants to charge based on the county time involved, "starting with $18.50 per hour and rising to $467.09 if a hearing is required." In other words, you will pay not for violating a permit, but for daring to disagree when charged with a violation.

Supervisor Richard Searle said "that the idea is to cover county expenses and not generate more revenue." Surely Searle does not believe that the people who have to fork over the cash care about which county fund it goes into.

The low point of the meeting came in an exchange between Searle and James E. Vlahovich, Director of the Department. After Vlahovich said the county wants to be more "proactive" as to businesses and new construction without permits, and severe hazards, Searle said "We don't want the building gestapo out there." Then "Vlahovich assured him that the department doesn't have the inclination or staffing to go door-to-door to see who has a permit." In other words, Vlahovich says the law should be passed because the present officeholders won't enforce it. Apparently, Vlahovich missed the day in civics class that covered America being a government of laws, not of men.

Of course, if low-level officials decide to enforce the law strictly against some people, those people cannot complain about selective enforcement. "Selective enforcement of the law" is not a defense to charges of violating the law. Apparently the rule "it's not the law, it's who you know, that counts," is okay with Vlahovich.

II. Planning & Zoning Corruption And Incompetence

To deal with the Planning & Zoning Commission, you have to know their rules. Here is a link to the first page of the Bylaws of the Commission:

http://littlebigdog.net/pnzbylaws1.jpg

To get pages 2 through 6, just change the number before ".jpg," from 2 through 6. You can enlarge them to make them easier to read. They were obtained from the Planning and Zoning Department on January 18, 2006.

Here is the gist of a complaint to the Attorney General:

-- A. Planning and Zoning personnel in general have been pushing to extend city-type building and safety controls into rural areas. At a Commission meeting on January 11, 2006, agenda item 4 was "Docket R-04-03A." It proposes slight modifications to Docket R-04-03, which consists of 28 pages, and is available online at

http://www.co.cochise.az.us/P&Z/R-04-03%20Resolution.pdf

Here is the text of Docket R-04-03A: “An ordinance proposing: 1) to consider several options for the application of the currently adopted Cochise County Building Safety Code to residential owner-builder construction on properties zoned RU-4, 10, 18 and 36 acres, SM-174, 10, 18 and 36 acres and SR-174, 10, 18 and 36 acres with four or more acres of land located in a Growth Category D (Rural) Area involving either limited or no required construction inspections, and then applying the option selected to such properties located in the existing building code enforcement area within the western portion of the County surrounding Pomerene, Benson, Whetstone, Sierra Vista, Hereford, Palominas and Bisbee immediately, to the Phase 2 area on April 1, 2006 and finally to the Phase 3 area on April 1, 2007; 2) to amend the current Building Code Fee Schedule for application in the existing and expanded building code enforcement areas; 3) to amend Section 1704 of the Zoning Regulations raising the value threshold requirement for building/use permits for any repairs or improvements from $500 to $1,000 (which includes the retail value of labor and materials); and 4) to amend Section 508 (Rural Zoned Districts) of the Zoning Regulations based upon the option selected to address the application of the Cochise County Building Safety Code to rural zoned areas."

The Applicant for Docket R-04-03A was the Commission. This is important, because the Commission’s Bylaws give different treatment to dockets initiated by the public, and dockets initiated by the Commission.

-- B. The conduct of P&Z's January 11 meeting.

Most of the items below are based on a CD recording of the meeting.

-- -- 1. After public discussion of Item 4, the Commission specifically stated that the public hearing was over. After a bit of effort, a member of the public got to ask one more question. At 2:45:52 into the CD:

“Martzke: Go ahead and ask your question.

“Jackson: [Question omitted]. That’s my question.

“Martzke: ok, the public hearing is closed.”

Then the Commission took two votes.

The first vote was on whether to remove Item 4's fourth numbered paragraph, which would have removed Section 508. This passed 5-3, leaving Section 508 in place.

The second vote was on whether to send the resulting package to the Board Of Supervisors for action. This tied, 4-4.

-- -- 2. The votes were by a show of hands, though Commission Bylaw III.7 states in part that “if the vote is not unanimous, the vote of each member present shall be recorded.”

No one recorded how the Commissioners voted. For one of the votes, the minutes provide a "vote listing" which was reconstructed after the fact and is incorrect. According to the CD, after taking the 5-3 and 4-4 votes, the Commission moved on to the next item on its agenda and took a break, and after the break, the following statements were made:

“__________: Can we just get a show of hands again who was against it? We just kind of missed the whole thing.

“_________: What’s that?

“_________: Who was against it?

“Corey: Who voted against the motions?

“_________: Mr. Walters, myself, Mr. Reeves.

“_________: Mr. Reeves? No, I was– you were for it.

“_________: Mr. Guy? My Guy was against it.

“__________: And I think Duane, Mr. Brofer.

“___________: That’s always interesting to see [unintelligible]

“[laughter]---- Denial?”

So, whichever vote is being reconstructed, the people who voted “against” the motion were Walters, “myself” (whoever the speaker was), Guy, and Brofer. But the "reconstructed" minutes report “Vote was 4-4. Commissioners Guy, Brofer, Walters and Reeves voted against.”

Also, the minutes don't reveal that no record was made at the time of the vote, and that the incorrect reconstruction was made after the Commission moved on to other business.

-- -- 3. The 4-4 vote caused some discussion among the Commission, its staff, and its attorney:

“Vlahovich or Hanson: You can have a second motion but a tie can go to the Board. As just a tie.

“Martzke: What is happening is that a tie is being forwarded to the Board of Supervisors for their final action. Their hearing will be on Feb. 7 on or after 9 a.m. in this room.

“Vlahovich: I do want to emphasize that the code as it stands is full building code compliance.

“Martzke: For those of you out there, the whole county is under full inspection code. That’s what come up with the vote that we have right now. It’s going to the Board of Supervisors as that. We have turned down the limited, so the full inspection code stands and it’s up to the Board of Supervisors to make the decision one way or the other on it or return it to us with additional action. The action to be taken by the Board of Supervisors will be at their February 7 meeting on or after 9 a.m. here in this location. Yes, it’s another public meeting.”

The speakers quoted above were wrong. Under Commission Bylaw III.10.B.2, for a docket initiated by the Commission, "A tie vote means that the docket fails. The docket dies at this level and is not be [sic] forwarded to the Board. (If it ties at the Commission level it can no longer be considered a Commission generated docket.)”

The speakers were applying Bylaw III.10.B.1, for dockets initiated by the public, under which a tie means that “The docket is forwarded to the Board with a report of the tie vote and a statement that this means the docket failed.”

-- -- 4. The Commission soon followed the same inapplicable Bylaw again.

After Martzke's announcement about the effect of the tie vote, the meeting moved on: “Next item is item 5. This is not a public hearing. It is Docket SU-05-19, a request to modify a site development standard for a Special Use Permit for a 150 foot tall telecommunications tower. . . .”

Then Martzke called a break that lasted about nine minutes. On the CD, you can hear people talking during the break, but their words are muffled. During this time, all the members of the public left because the Commission had voted on Item 4 and moved on.

Then, at 3:10:05, Martzke asked attorney Hanson for advice on what to do with the 4-4 vote. Marzke specifically noted that the public was gone: "I would like to bring one thing up. I had requested if there was another motion. Legally, when there is a tie, another motion can be made. So if we would have made another motion and voted on this one way or another, some action could be taken on it. As it now stands, we are - it’s dead. Now this is what we are going to ask of the attorney now. What our options are being that the people are gone.”

The Open Meeting Law may well have been violated at this point. It can easily be argued that the Commission took advantage of the public’s absence in order to set aside the vote that the public saw. Acting without the public present, when your own act caused the public to leave, may well violate the OML.

Evidence that the Commission acted with an improper motive is found in the Commission’s insistence on following a Bylaw which on its face did not apply.

More evidence of improper intent may be found in a comment by attorney Hanson a little later in the meeting, that if Item 4 were revived at a later meeting, the Board might be able to keep the public from making any comments. Here is Hanson’s comment, excerpted from his full advice, repeated immediately below: “It could be that the Commission would say all the people have been heard here tonight, you told us what you are thinking, we really don’t need to hear it again.”

-- -- 5. Attorney Hanson's full advice was: “Three options to think about and I’m going to recommend only two of those. One would be to reopen, reconsider the matter, look for another motion and vote on it actively. I would recommend against that since the public was given the impression that the matter was done with for tonight. So that would be a bad option. Another option would be to let the matter rest as it is, and if the Commission wanted to reconsider one of the options that was presented to you tonight . . . then you could go through the whole process of initiating again, go through the notification process. A third option that I think would be acceptable would be, to reopen just for the purpose of tabling it for another day so you wouldn’t have to go through the whole notification process again. That I think would do justice to the Open Meeting Laws, the people would certainly have the opportunity to hear about it again, attend, and have their voices heard, if the Commission so chose. It could be that the Commission would say all the people have been heard here tonight, you told us what you are thinking, we really don’t need to hear it again. Or you could let them do it, whichever way you prefer. But I think the tabling option is acceptable, and we would be within the spirit of the Open Meeting Laws if the Commission wanted to do that, or let it drop.”

Hanson advised against his first option, to reopen Item 4, because “the public was given the impression that the matter was done with for tonight.” Of course, that was not a mere “impression,” it was fact.

Hanson’s second option, “to let the matter rest as it is, and . . . you could go through the whole process of initiating again, go through the notification process,” was not accepted by the Commission.

Hanson’s third option was what the Commission accepted: “reopen just for the purpose of tabling it for another day so you wouldn’t have to go through the whole notification process again. That I think would do justice to the Open Meeting Law, the people would certainly have the opportunity to hear about it again, attend, and have their voices heard, if the Commission so chose. It could be that the Commission would say all the people have been heard here tonight, you told us what you are thinking, we really don’t need to hear it again. Or you could let them do it, whichever way you prefer.”

In suggesting that the Commission could act “whichever way you prefer,” Hanson was not giving due consideration to the overriding principle of the Open Meeting Law, that any uncertainty about openness is to be decided in favor of openness.

In any event, Hanson’s third option violated the Commission's Bylaws. This option is taken from Bylaw III.10.B.1, which says "The Commission has the option to make a subsequence motion to table.” But this applies to dockets initiated by the public; tabling is not an option offered in the Bylaw which applies to dockets initiated by the Commission.

In a letter dated January 25, Planning & Zoning Department head Judy Anderson agreed with the correct reading of the Bylaws, set out in the preceding paragraph.

-- -- 6. After Hanson presented his three options, the CD is unintelligible until Martzke opened discussion of Hanson’s advice and recommendations:

“Hanson?? ok it will be up to the Chair to reopen it.

“Martzke: To the - uh - we got our options. I will entertain reopening for any one of the actions that you want to do. Either to start totally over, table, or leave it stand as it is now.

“[unintelligible]

“Martzke: Do we have to table to a time [certain?] on this?

“Hanson?? You would probably want to do that. [unintelligible]

“Martzke: By tabling it, will we get notification out to all the people who were here tonight, those especially that we have names and addresses, could we be sure that they got notified? ok... I will open the Docket R-04-03A for additional Commission action if the Commission so desires.

“???: ______________ Mr. Chairman before we get too involved in this [unintelligible]

“Martzke: If we table, we will go into the options and definitions that we want to look for at the next hearing.

“[discussing time - “April - I think that’s a little long.”]

“We have the ability to notify the folks who shared their concerns with us tonight. [unintelligible]

“March, March would be good.

“Martzke: Seconded, seconded for March. Tabled until the March meeting? All in favor signal by raising their right hand. It is unanimous. [unintelligible]”

So, based on attorney Hanson’s advice, the Commission voted for a procedure which is not allowed by the Bylaw that applies to this docket.

Even the initial step of “reopening” may not have been allowed by either parliamentary procedure or by the Open Meeting Law.

To all appearances, the Commission was willing to do anything to avoid acknowledging that the docket had been defeated and was dead.

-- C. Planning & Zoning Department acts on January 25, 2006.

The Planning & Zoning Department refused to make the minutes from January 11 available until January 25. The Director of the Department, Judy Anderson, insisted that the OML did not require minutes to be made available within three working days after a meeting. She refused to provide a CD at all; one was obtained from the Board of Supervisors, at a cost of $10. Anderson was violating the Open Meeting Law.

Finally, on April 25, two weeks after the meeting, Anderson emailed the minutes out at exactly 1:00 p.m. on January 25. At 1:11 and 1:16, she emailed a letter whose subject was “some confusion that has developed” over the January 11 hearing. The closeness in time of these emailings suggests that the minutes and the letter were composed together.

Anderson’s third numbered paragraph states: “3) As a result of this realization by the Commission and the fact that a number of County Residents left the room before this bylaw issue was clarified, the Commission made the decision to re-open the docket and then table it for further consideration at the March 8, 2006 meeting. This action was taken to allow more time for the members of the Commission and County Residents to understand the information presented. Additional consideration of the Docket R-04-03A by the Commission will occur during the upcoming March 8, 2006 public Commission meeting at or after 5:00 p.m.”

The statement that the Commission decided to reopen the matter in March is correct, but Anderson presented the decision in an intellectually dishonest manner. She assumed that the Commission had the authority to “reopen” the matter, and she ignored the fact that the decision violates the applicable Bylaw.

-- It is not true that a “number” of the public had not left by the time the Commission returned to Item 4. The truth is that all of the public had gone. Chairman Martzke announced that the public had gone. Anderson was at the meeting, so she knew this.

-- Anderson ignored the issue of whether the Commission had the authority to “reopen” a matter, without any public notice, after it was voted on and the Commission had moved on to the next item on the agenda. This “reopening” may have iolated parliamentary procedure, and certainly violated the OML, apparently with Anderson's approval.

-- Finally, Anderson must know that the Commission’s action is not allowed by Bylaw III.10.B.2 -- because she quoted that Bylaw in her preceding paragraph!

Anderson’s fourth numbered paragraph states: “4) Additionally, there will be a Commission Work Session (informational only - no votes to be taken) on the proposed options and changes at the February 8, 2006 Commission meeting starting at 4:00PM.” Anderson and the Commission have both recognized that “the proposed options and changes” are dead, yet Anderson proposed a meeting on this dead issue. What can Anderson be doing, except rushing the process forward because of deadlines the public is not aware of?

This whole business -- the incredible ineptitude on January 11, including the Commission’s initial errors about the applicable Bylaws, attorney Hanson’s giving advice which violates the Bylaws, Department head Judy Anderson’s being silent at the time, and now barging ahead to continue violating the Bylaws and the OML -- is hard to understand, if one believes that our public servants are carrying out the public's business. The public does not want what Planning and Zoning wants to do -- but what Planning and Zoning wants will be to the great benefit of deep-pockets real estate interests.

Mobilization is necessary to stop Planning and Zoning from killing the way of life that rural people want to keep.

III. Disenfranchising Voters in Supervisor Paul Newman's District

Cochise County has three supervisors, who represent three separate districts. One district is centered around Sierra Vista, the other district is generally the northwest part of the county, and District Two is generally the southeast part of the county, including the Sulphur Springs Valley.

At a Board meeting on April 26, 2005, Call and Searle voted for a new rule: no item can be discussed by the Board at a work session, unless at least two supervisors agree, in a separate meeting beforehand. This rule is contained in Resolution 05-20.

Under 05-20, the concerns of Newman's district need never be considered. Call and Searle may agree to hear the concerns of Newman's constituents, but that is just a matter of grace -- voters in Newman's district have no right to be heard.

However, Call and Searle violated the Open Meeting Law -- making every action taken at the meeting null and void (and in any event, 05-20 is unConstitutional.)

-- A. How the April 26, 2005, Meeting Debated Resolution 05-20

Here, from the minutes of the April 26 meeting, is how . . .

". . . the Board of Supervisors convened the Special Meeting on the posted issues. Discussion was held on the issue of work sessions and the requirements that requests be placed on the agenda and voted upon to set a work session. Supervisor Searle explained that placing the request for work sessions on the formal agenda was a more efficient way to operate for the entire board. He stressed that any decision regarding work sessions will take place in a public forum, will be properly noticed and the world will know what the decision of the collective board was regarding any request. If there is a disagreement and a request for a work session was voted down by the other two supervisors, it will be reflected in the minutes. This was not designed against a single supervisor, and in most instances, work sessions would occur.

"Vice Chairman Newman restated his position that his views will not be heard, that he represents almost 40,000 people in his district, and that he has a First Amendment right to be heard. Vice Chairman Newman reiterated his position that the change was an attempt by the majority party to silence him. He stated that he has no other way to communicate with the other two board members as he is forbidden to do so under the Open Meeting Law. Vice Chairman Newman read an email from Anthony Chin, Esquire, regarding rights of an elected official dated Monday, April 25, 2005.

[update: The name is not Chin, it's Ching; and Newman did not place Ching's email into the record, so we do not know what it said.]

"Supervisor Searle stated that there is no justification to rehash the same issues if a decision has been made unless there is a valid reason for doing do so such as new information having come to light. Supervisor Searle indicated that this new procedure should be given a chance. He mentioned that he had to drive seventy miles into Bisbee for some work sessions, and he ought to know what they are about and what was to be accomplished before he committed to that time. Vice Chairman Newman expressed that he did not oppose the requirement for having to write out what was requested, but did not believe the others had the right to refuse a work session. Supervisor Searle stated that if it did not work, it could be changed easily. The issue of tasers was used as an example. Mr. Klein related that a work session was held on Tasers and then the Board took specific action in the form of a resolution. Subsequent to that, two additional work sessions were requested and held, since any supervisor, under the present system, can call for and have a work session, to relate articles concerning falling Taser stock and deaths related to Tasers in an Arizona Republic article. No agenda or purpose of the meeting was identified.

"Chairman Call also expressed that he had every confidence that the new procedure would work and would like to give it a try. He indicated that it was a productive way to go and does not preclude anyone from expressing their opinion. The discussion regarding this proposal took place three weeks ago and he still thought it is a good idea.

"Vice Chairman Newman asked for a couple of days to fully understand all the legal ramifications to this action and wanted time to seek his own legal advice.

[Coming after Newman read an email from an attorney, this request looks merely dilatory.]

"Vice Chairman Newman made a motion to adopt Resolution 05-20, which was seconded by Supervisor Searle. Vice Chairman Newman made an opposing motion asking to continue the action so that he could pursue the legal ramifications of this procedure and get advice on his constitutional rights. Clarification was obtained that he wanted this item tabled until next Tuesday (May 3, 2005). Supervisor Searle seconded this motion as well. Supervisor Searle indicated that he would support the original motion, saw no need to wait, but that if Vice Chairman Newman came up with information that contradicted the advice given by the Chief Deputy County Attorney that the process was legal, then he would be the first to reconsider the action and give Vice Chairman Newman an opportunity to present that information. The motion to continue the action, was voted upon, and failed by a 2-1 vote, with Vice Chairman Newman voting "yes" and the other two supervisors voting "no."

"A vote was then taken on the original motion to adopt Resolution No. 05-20, and it passed by a 2-1 vote, with Chairman Call and Searle voting "yes" and Vice Chairman Newman voting 'no.'"

Later in the meeting, the issue was revisited:

"Vice Chairman Newman then asked Chief Deputy County Attorney Irwin to provide a written legal opinion on two issues: "1) Can the Board set up a procedure whereby the collective Board can vote upon whether or not to hold a work session? Does this new procedure for requesting work sessions unconstitutionally infringe on any elected board member's first amendment right to be heard and be a voice for the constituents that he represents? Does the adopted work session procedure unlawfully restrict the ability of an elected official board member to influence the actions performed by the governing body as a whole?

* * * * *

"Chief Deputy Attorney Irwin mentioned that his legal opinion would not change and that he would be happy to provide it if requested by the collective Board. He noted that any elected official can request the Attorney General (AG) to review this legal opinion. However, the AG is not legally mandated to respond to a request from the County or any of its officials.

"Supervisor Searle made a motion to direct the County Attorney to provide the Board members with a written legal opinion regarding the procedure to request work sessions and whether or not it affect the right of a supervisor to be heard . . . . The motion was unanimous."

I have obtained Irwin's letter showing the advice he gave to the Supervisors. Irwin's letter would get an F on any bar exam in the country. Two of the reasons are obvious to anyone, but the third requires a little look at the law.

-- -- 1, Irwin argues that because the Board of Supervisors can pass rules in general, it can pass this rule in particular. Well -- if a grocer threw food into your shopping cart saying "you can eat food in general, so you can eat this particular food,"you would conclude that the grocer was an idiot.

-- -- 2, Irwin wants to ignore a lawsuit that Newman cited, because its underlying facts are not identical to what the Board of Supervisors did. Irwin's argument is perfectly fair -- but then he turns around and relies on two other cases which also have facts different from ours. If a grocer knocked a can of ravioli out of your hands yelling "starch is bad for you!" then shoved a can of rice at you shouting "eat these, they have a lot of starch!" you would conclude that the grocer was an idiot.

-- -- 3. The Advice Irwin Gave, Which the Public Was Not Supposed To See.

Irwin cites two cases as supporting the Board's authority to make this particular rule: Davids v. Akers, 549 F2d 120 (CA9, 1977), and Parker v. Merlino, 646 F2d 848 (CA3, 1981).

In Davids, Democrats, a minority in the Arizona legislature, were allowed to join legislative committees, but complained that they did not get enough membership. The judge ruled that "It stretches the language of the First Amendment beyond recognition to make it mean that an elected member of the [Arizona] legislature, who so far as appears, has the usual right of a member to speak to and vote upon matters that come before the House, including the right to appear and testify before its standing committees, has had his right to assemble and petition the government infringed because the Speaker of the House has not appointed him . . . to a committee or to certain committees." A case in which legislators could vote on the merits of issues hardly supports a rule that allows a majority to prevent not just a vote but even any discussion of the merits.

In Parker, a lawsuit arose about a New Jersey legislative rule that set maximum time limits for debate on the merits. However, the year after the case went to court, the legislature changed the rule to ensure that each party could debate the merits of any motion. A case which led to a political compromise, that guaranteed both sides the right to debate the merits of an issue, hardly supports the rule that Irwin is defending.

Daly, the case that Newman cited but Irwin brushed aside, says a good deal about the principles involved, in particular, "one person, one vote." Daly was about the gerrymandering of representation districts, and noted that "one person, one vote" "ensures that every voter, no matter what district he or she lives in, will have an equal say in electing a representative" and "also ensures that every person receives equal representation by his or her elected officials." In our case, the new rule allows Call and Searle to dilute the votes of people in District 2, by simply not allowing Newman to raise the concerns of his constituents.

The Supreme Court acknowledged that the Fourteenth Amendment to the US Constitution requires "one person, one vote," in Baker v. Carr, 369 US 186, (1962). The principle has been followed ever since, whenever the issue comes up. Daly quoted Reynolds v. Sims, 377 US 533 (1964), which recognized that "the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to . . . place of residence within a State." In Cochise County, Call and Searle set up a rule that denies equal representation to voters.

Daly distinguishes "representational equality" from "electoral equality." Under "representational equality," "elected officials are able to obtain benefits for their districts in proportion to their" population. Under "electoral equality," "political power . . . is equalized as between districts holding the same number of" voters, and that "those eligible to vote do not suffer dilution of that important right by having their vote given less weight than that of electors in another location." Call and Searle voted for a rule that dilutes Newman's votes to a value of zero, because Newman does not have the power even to introduce any measures that might benefit District 2; and the rule denies electoral equality because the votes in District 2 count for nothing.

Daly also notes that "each representative individually should have the same ability to influence the actions performed by the governing body as a whole. . . . [I]f representatives can secure governmental benefits and services for their constituents in proportion to their [number], then districts of equal population would ensure that all persons receive roughly equal benefits and services from the government," citing Garza v. County of Los Angeles, 918 F2d 763, 781 (CA9, 1990), cert. den., 498 US 1028 (1991). Call and Searle voted for a rule that violates that principle. Whatever the populations of Cochise County Districts 1, 2 and 3 are, the representatives of Districts 1 and 3 can prevent the citizens of District 2 from receiving benefits and services.

It is true that Daly addressed the comparative population of electoral districts, not the variation on disenfranchisement that Call and Searle voted for. Most disputes in this area concern disputes over the inequality in population of different electoral districts. But Daly's principles apply to any procedure, whether it is aimed at disenfranchising voters or disenfranchising their representatives. Daly's principles apply to the rule that Call and Searle voted for.

Call and Searle voted, on Irwin's advice, to violate the Fourteenth Amendment and disenfranchise every voter who does not live in Call's or Searle's district.

A case that neither side mentioned is New York City Board of Estimate v. Morris, 489 US 688 (1989), which states that "in this country the people govern themselves through their elected representatives and that 'each and every citizen has an inalienable right to full and effective participation in the political processes' of the legislative bodies of the Nation, State, or locality as the case may be. Reynolds v. Sims, 377 U.S., at 565."

The New York City Board of Estimate has a broad range of powers, like our Board of Supervisors. In that case, the Supreme Court noted that "[t]he personal right to vote is a value in itself, and a citizen is, without more and without mathematically calculating his power to determine the outcome of an election, shortchanged if he may vote for only one representative when citizens in a neighboring district, of equal population, vote for two; or to put it another way, if he may vote for one representative and the voters in another district half the size also elect one representative." If a citizen of New York City is shortchanged when his vote counts for half of a vote in another district, a citizen of Cochise County District 2 is even more shortchanged when his or her vote counts for nothing. That is what Call and Searle voted for.

In NYC Board of Estimate, the Supreme Court found that a variation in voter power of either 78% or 132%, depending on how it was measured, was unacceptable. The rule that Call and Searle voted for would make variations in voter power in Cochise County infinite, because votes from Newman's district are worth zero.

Incidentally, NYC Board of Estimate affirms that "one person, one vote" "extends not only to congressional districting plans, see Wesberry v. Sanders, 376 U.S. 1 (1964), not only to state legislative districting, see Reynolds v. Sims, supra, but also to local government apportionment. Avery v. Midland County, 390 U.S. 474, 479-481 (1968); Abate v. Mundt, supra, at 185."

In short: All the relevant cases are battering rams against Call and Searle, but Irwin only showed Call and Searle a few splinters taken out of context.

Now, back to the main point, and why Arizona's Open Meeting Law means that the rule Call and Searle voted for is null and void.

-- B. Arizona's Open Meeting Law, or "OML"

-- -- 1. Under the Open Meeting Law, the "OML," Arizona public bodies, including the Cochise County Board of Supervisors, must make its meetings open to the public:

ARS 38-431.01. Meetings shall be open to the public

A. All meetings . . . shall be public meetings and all persons . . . shall be permitted to attend and listen to the deliberations and proceedings. All legal action of public bodies shall occur during a public meeting.

B. All public bodies, except for subcommittees and advisory committees, shall provide for the taking of written minutes or a recording of all their meetings, including executive sessions. For meetings other than executive sessions, such minutes or recording shall include, but not be limited to:

1. The date, time and place of the meeting.

2. The members of the public body recorded as either present or absent.

3. A general description of the matters considered.

4. An accurate description of all legal actions proposed, discussed or taken, and the names of members who propose each motion. The minutes shall also include the names of the persons, as given, making statements or presenting material to the public body and a reference to the legal action . . . which they [addressed].

C. Minutes of executive sessions shall include items set forth in subsection B, paragraphs 1, 2 and 3 of this section, an accurate description of all instructions given pursuant to section 38-431.03[(A)(4), (5) and (7)] and such other matters as may be deemed appropriate by the public body.

D. The minutes or a recording shall be open to public inspection three working days after the meeting except as otherwise specifically provided by this article.

E. All or any part of a public meeting . . . may be recorded by any person in attendance by means of a tape recorder, camera or other means of sonic reproduction, provided that there is no active interference with the conduct of the meeting. * * *

G. A public body may make an open call to the public during a public meeting, subject to reasonable time, place and manner restrictions, to allow individuals to address the public body . . . . At the conclusion of an open call . . . , individual members of the public body may respond to criticism made by those who have addressed the public body, may ask staff to review a matter or may ask that a matter be put on a future agenda. However, . . . the public body shall not discuss or take legal action on matters raised during an open call . . . unless the matters are properly noticed for discussion and legal action.

In short, public bodies meet in public, and keep minutes which are accurate and available; if you speak to the public body, you must identify yourself; and any citizen may make audio and video recordings of the meeting, as long as recording does not obstruct the meeting (you may not block people's view or blind people with your lights, but you may record even if being recorded upsets some stuffed shirt who wants to feed at the public trough without letting his grubbing be seen by the public). Finally, a public body may ask for citizen input, and any member of the public body may ask that citizen input be followed up at a future meeting, so long as the matter is "properly noticed for discussion and legal action."

-- -- 2. Closed Meetings, Or "Executive Sessions"

Despite the general rule that meetings must be open, closed sessions, called "executive sessions," are sometimes allowed:

ARS 38-431.03 Executive sessions

A. Upon a public majority vote of the members constituting a quorum, a public body may hold an executive session but only for the following purposes:

1. Discussion or consideration of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of a public officer, appointee or employee . . . , except that, with the exception of salary discussions, an officer, appointee or employee may demand that the discussion or consideration occur at a public meeting. The public body shall provide the officer, appointee or employee with written notice of the executive session as is appropriate but not less than twenty-four hours . . . .

2. Discussion or consideration of records exempt . . . from public inspection . . .

3. Discussion or consultation for legal advice with . . . attorneys of the public body.

4. Discussion or consultation with . . . attorneys . . . regarding . . . contracts that are the subject of negotiations, in pending or contemplated litigation or in settlement discussions . . . .

5. Discussions or consultations with designated representatives of the public body . . . regarding negotiations with employee organizations . . . .

* * *

7. Discussions or consultations with designated representatives of the public body . . . regarding negotiations for the purchase, sale or lease of real property.

B. Minutes of and discussions made at executive sessions shall be kept confidential except from:

1. Members of the public body which met in executive session.

2. Officers, appointees or employees who were the subject of discussion or consideration pursuant to subsection A, paragraph 1 of this section.

* * *

D. . . . . A public vote shall be taken before any legal action binds the public body.

E. Except as provided in section 38-431.02, subsections I and J, a public body shall not discuss any matter in an executive session which is not described in the notice of the executive session.

The exceptions in ARS 38-431.02, noted in that last paragraph, are as follows:

(I). . . . notice of executive sessions shall be required to include only a general description of the matters to be considered. Such agenda shall provide more than just a recital of the statutory provisions authorizing the executive session, but need not contain information that would defeat the purpose of the executive session, compromise the legitimate privacy interests of a public officer, appointee or employee, or compromise the attorney-client privilege.

(J). Notwithstanding subsections H and I, in the case of an actual emergency a matter may be discussed and considered and, at public meetings, decided, where the matter was not listed on the agenda provided that a statement setting forth the reasons necessitating such discussion, consideration or decision is placed in the minutes of the meeting and is publicly announced at the public meeting. In the case of an executive session, the reason for consideration of the emergency measure shall be announced publicly immediately prior to the executive session.

-- -- 3. Effects of the Board Of Supervisors Violating the OML

The basic effect of violating the OML during a meeting is that every action taken during the meeting is void.

ARS 38-431.05 states:

A. All legal action transacted by any public body during a meeting held in violation of any provision of this article is null and void except as provided in subsection B.

B. A public body may ratify legal action taken in violation of this article in accordance with the following requirements:

1. Ratification shall take place at a public meeting within thirty days after discovery of the violation or after such discovery should have been made by the exercise of reasonable diligence.

2. The notice for the meeting shall include a description of the action to be ratified, a clear statement that the public body proposes to ratify a prior action and information on how the public may obtain a detailed written description of the action to be ratified.

3. The public body shall make available to the public a detailed written description of the action to be ratified and all deliberations, consultations and decisions by members of the public body that preceded and related to such action. The written description shall also be included as part of the minutes of the meeting at which ratification is taken.

4. The public body shall make available to the public the notice and detailed written description required by this section at least seventy-two hours in advance of the public meeting at which the ratification is taken.

That is quite a broad effect, to nullify every vote taken during a meeting that violates any part of "this article," meaning Title 38 "Public Officers And Employees," Chapter 3 "Conduct Of Office," Article 3.1 "Public Meetings And Proceedings," Sections 38-431 through 38-431.09 inclusive.

Clearly, a citizen need not stand up and complain about a violation at the meeting where it occurs; the statute specifically schedules events from the date on which a violation is discovered, i.e. the statute does not assume that a violation will be discovered on the day of a meeting.

For how to start an investigation of a possible violation, see ARS 38-431.06.

-- -- 4. The Board Violated the OML While Disenfranchising Newman's Constituents

The first hour of the 4/26/05 meeting was taken up by an executive session. Here is what the minutes say:

"MINUTES OF THE SPECIAL MEETING OF THE COCHISE COUNTY BOARD OF SUPERVISORS TUESDAY, APRIL 26, 2005

"A Special Board meeting of the Cochise County Board of Supervisors was held on Tuesday, April 26, 2005 at 02:30 PM in the Board of Supervisors' Conference Room located at 1415 Melody Lane, Bisbee, AZ 85603. In attendance were Patrick Call, Chairman; Richard Searle, Member; Paul Newman, Vice-Chairman; Jody Klein, County Administrator; Charles Irwin, Deputy County Attorney and Nadine Parkhurst, Clerk of the Board.

"Action

"ITEM 1, discussion or consideration for legal advice with the attorney(s) of the public body.

"The Board of Supervisors may decide to go into executive session pursuant to A.R.S. 38-431.03(A) 3 to obtain legal advice on the rights of Board members and personnel matters related to the position of County Administrator and the Clerk of the Board.

"Vice Chairman Newman made a motion, which was seconded by Supervisor Searle, to go into executive session pursuant to A.R.S. 38-431.03(A)(3) to obtain legal advice on the rights of Board members and personnel matters related to the position of County Administrator and the Clerk of the Board. The motion unanimously carried.

"Confidential minutes are on file with the Clerk of the Board.

"At 03:30 PM, Chairman Call reconvened this meeting into an open forum.

"ITEM 2, Action related to Item 1

"No action was taken regarding this item.

"ITEM 3, DISCUSSION AND POTENTIAL ACTION ON ISSUES RELATED TO PROTOCOL AND PROCEDURES OF THE BOARD OF SUPERVISORS INCLUDING STAFF SUPPORT AND WORK SESSION SCHEDULING AND POTENTIAL ADOPTION OF RESOLUTION NO. 05-20__MODIFYING RESOLUTION NO. 04-48 AND AMENDING THE TIMES AND PROCEDURES FOR THE MEETINGS OF THE COCHISE COUNTY BOARD OF SUPERVISORS

"Following the close of the executive session for legal advice, the Board of Supervisors convened the Special Meeting on the posted issues."

And at this point we have picked up the minutes of the April 26 meeting where they were first quoted above, and can resume the discussion of what happened at the meeting.

First, entering into an executive session may have been improper. Newman's motion for an executive session was placed in the minutes as seeking legal advice on two separate matters: "the rights of Board members and personnel matters related to the position of County Administrator and the Clerk of the Board." The only reading of that which makes sense is that the Board was seeking legal advice on "the rights of Board members" and on "personnel matters . . . ."

The OML requires the agenda of executive sessions to specify the statute authorizing discussion of a subject in executive session. For personnel matters, the April 26 agenda didn't do that.

The OML prohibits the agenda from merely repeating the words of the statute, and thereby not giving any real information about the actual subject. As to "the rights of Board members," the agenda merely repeated the words of the statute, and added the phrase that the legal advice was being sought about legal rights -- as if legal advice were ever about anything else.

The OML requires the contents of executive sessions to be kept confidential, but during the open part of the April 26 meeting, "Supervisor Searle [repeated] the advice given by the Chief Deputy County Attorney that the process was legal . . . ." Up to the time that Searle spilled the beans, the attorney in question, Charles Irwin, had never spoken in any way the subject in question, so Irwin must have given his advice in executive session, and the only executive session he could have done that at was the executive session immediately preceding the public part of the meeting on April 26. For Searle to blab what Irwin advised was a violation of the confidentiality requirement of the OML.

The OML requires the Board not to discuss anything in executive session that is not on the agenda of the executive session, or closely related to it. When Searle opened his mouth and revealed the advice that Irwin gave in executive session, Searle also revealed that the Board had been discussing a matter in executive session which was not on the agenda of the executive session -- the unConstitutional Resolution 05-20, discussed above.

Based on these four violations of the OML, all action taken at the meeting on April 26, 2005, is null and void. That means that Resolution 05-20 does not now have any legal effect and never did have. Resolution 05-20 amounts to absolutely nothing. What would it take to get the Board to acknowledge this?

CONCLUSION

When government officials believe that

if they don't allow it, you can't do it,

and that you shouldn't mind bad laws being passed

because the present officials aren't really bad guys,

then all the officials should be removed

from their position at the public trough,

and the laws they pass should be rewritten

to follow American ideals

and always to follow the Constitution.