COCHISE COUNTY PAYS ALMOST $42K
BECAUSE SUPERVISORS CALL AND SEARLE VIOLATED THE LAW

I.  The final rulings

The County must pay almost $42,000 in legal fees and costs to the winners in a lawsuit to prevent formation of a golf tax district.  The suit was filed after Supervisors Call and Searle knowingly violated the law in order to vote for the district.

Judge Irwin's ruling -- see
.  http://littlebigdog.net/Golf$Ruling.pdf
-- orders the County to pay attorney fees of $37,720, plus office costs of $3916.28, for a total of $41,636.28.  The winners asked for fees of $58,132.50, but the judge reduced that to $37,720, apparently because he felt the winning attorneys worked too many hours.  That's about like saying the winners could have won with a lot less work.  That's no comfort to the losers.

NOTE, on Feb 23, 2013, all the documents linked to from this point were removed from this website.  No sinister purpose, just trying to hold down space on the server.

The County made two sets of arguments against the fee award.  The judge disagreed with them all.

First came filings by Adam Ambrose, who left County employ a while back, but somehow got sucked back in for this debacle.  Ambrose argued -- see
.  http://littlebigdog.net/$Ansr.pdf
-- that "Defendants have no quarrel with the Court's ruling that Plaintiffs are entitled to fees and costs" but that limits of $75 an hour for attorney time, and $10,000 overall, should apply.  The Court's ruling "FINDS that Plaintiff is not only entitled to fees and other expenses pursuant to its statutory claim ... but also in equity pursuant to the private attorney general doctrine ... at the discretion of the trial court."

Then came a surprise filing that, according to Ambrose, offered arguments from "Britt Hanson, Chief Civil Deputy County Attorney, counsel who had litigated the case [and now] identified factors the Court must consider when granting an award of fees that [Ambrose] had not put forward for lack of familiarity with the merits of the case."  However, the Court didn't feel it had to address Hanson's "factors;" in fact, the ruling ignores them.  Hanson's kibitzing was worthless, and it's a mystery why Ambrose was forced to cater to Hanson after Hanson lost the case so thoroughly.

To sum up the case:  Supervisors Call and Searle took a course which they knew was illegal.  Many private citizens kept telling Call and Searle that they were breaking the law.  Now that the judge has ruled, it's indisputable that not Call -- not Searle -- not any County employee who advised them -- none of these were earning their keep.  The judge's ruling "FINDS that private enforcement was necessary in this matter."  The County must now pay $41,636.18 -- which will come out of your tax dollars -- to the citizens who stood up to "wildcat supervisors" Call and Searle.

Neither side appealed the ruling, and the County has paid the $42,000 -- in a check signed by Searle, but drawn on the public treasury.


II.  The case up to the final ruling.

On June 15, the winners in the lawsuit against the Sunsites golf tax district filed a motion asking the Court to award them their attorney fees and expenses.  The main ruling in the case is at
.  http://littlebigdog.net/GolfParkDistrictReversed.pdf
and the Motion for fees and expenses is at
.  http://littlebigdog.net/$Mot.pdf
The County's Answer is at
.  http://littlebigdog.net/$Ansr.pdf
and the winners' Reply is at
.  http://littlebigdog.net/$Reply.pdf
For legal filings, the Motion/Answer/Reply system is pretty standard.  After a party makes a Motion, the opponent gets to Answer; a Reply shouldn't just rehash the arguments in the Motion, it should address only issues that came up for the first time in the Answer.

Instead of condensing all of the arguments, this writeup will pick out some interesting passages from the filings.

On page 11 of the main ruling at
.  http://littlebigdog.net/GolfParkDistrictReversed.pdf
the judge said that the "Plaintiffs have been required to incur legal fees and costs to challenge the passage of Resolution 11-51, notwithstanding their vocal opposition during the formation process.  Plaintiffs are entitled to an award of attorney fees pursuant to ARS 12-348(A)(2).  Plaintiff may submit their Affidavit of Fees and Costs and Defendants may submit its response thereto."

On page 1 of the Motion for fees and expenses at
.  http://littlebigdog.net/$Mot.pdf
the winners state "Pursuant to A.R.S. 12-348(E)(2), and the Court's Decision dated May 29, 2012, Plaintiffs ... hereby request ... their fees reasonably incurred in successfully bringing this lawsuit, and to raise the statutory rate for attorneys' fees to the actual rate charged by Plaintiffs' counsel, which was reasonable given the nature, novelty and complexity of this lawsuit."

The Court's reference to ARS 12-348(A)(2), and the winners' reference to 12-348(E)(2), may be a little confusing, so here's a look at the statute itself.  The whole statute is online at
.  http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/12/00348.htm&Title=12&DocType=ARS
and here are some highlights:
.  A.  In addition to any costs that are awarded as prescribed by statute, a court shall award fees and other expenses to any party other than [a] county that prevails ... on the merits in ...  2.  A court proceeding to review a state agency decision ...
.  D.  A party may apply ... for an award of attorney fees and other expenses ... and shall include ... evidence of the party's eligibility for the award and the amount sought, including an itemized statement from the attorneys ... stating the actual time expended in representing the party and the rate at which the fees were computed.
.  E.  The court shall base any award of fees as provided in this section on prevailing market rates for the kind and quality of the services furnished, except that: ...
.    2. ...  the award ... may not exceed the amount that the prevailing party has paid or has agreed to pay the attorney or a maximum amount of seventy-five dollars per hour unless the court determines that an increase in the cost of living or a special factor ... justifies a higher fee.
.    4.  ... an award of fees ... as provided in this section shall not exceed ten thousand dollars....
.  I.1.  "Fees and other expenses" means ... reasonable and necessary attorney fees, and in ... an action ... pursuant to subsection A, paragraph 2 of this section, all fees and other expenses that are incurred in the contested case ....

As our update of June 23 noted, the winners want reimbursement of their attorney fees of $58,132.50, plus miscellaneous office costs of $3916.23.

The winners' basic argument, on page 4 of their Motion, is that they "should be entitled to reimbursement of their attorneys fees at the prevailing market rate (in other words, at a rate higher than the statutory rate of $75 per hour):  not only has the cost of living increased dramatically since the rate was set in 1981, and not only were the issues novel and required the retention of experienced counsel, but the right vindicated by Plaintiffs benefits a large number of people, it required private enforcement, and is of societal importance."

A very interesting argument is on page 8 of the Motion:  "the County chose to defend this lawsuit vigorously even though it admitted that 'too many errors had been made' and it admitted that the Board 'staff had made its fair share of errors.'  The Plaintiffs and other members of the public who were affected by the proposed new tax and who objected to it were very vocal right from the beginning of the process.  Every issue they raised then was raised in this lawsuit.  The County knew and admitted that its publicly-stated wishes had not been followed through by County Staff; Supervisor Searle stated that the Board staff 'did not follow through with the Board's wishes.'  The County Attorney himself admitted, at the meeting at which the County chose to create the Taxing District in spite of the abnormalities, that 'this is not a good position for the County to be in.'  The simplest and cheapest solution would have been for it to have corrected the errors and given the Petitioners more time to comply.  However, it instead chose to defend this lawsuit and put the Plaintiffs to the cost of forcing the County to do what it should have done from the start."

The deputy county attorney referred to above is Britt Hanson, the appointed deputy county attorney from the County Attorney's office who usually advises the BOS at meetings.  However, it was not Hanson who signed the County's Answer, it was Adam Ambrose, who escaped from County employment a while back and may be pondering with regret the words of Al Pacino:  "Just when I thought I was out, they pull me back in."

On pages 2-3 in the Answer at
.  http://littlebigdog.net/$Ansr.pdf
Ambrose stated "Defendants have no quarrel with the Court's ruling that Plaintiffs are entitled to fees and costs but ... Plaintiffs have submitted a claim for fees that far exceeds authority provided by ARS 12-348(A)(2)."  Ambrose argues that the increase in the cost of living since the $75 an hour limit was passed in 1981 is irrelevant; he also relies on the $10,000 limit.

On page 7 of his Answer, Ambrose provides a very amusing quote:  "before the cost of living may be considered ... it must first be demonstrated that the cost of living has made attorneys less available at the $75 rate -- so much less that it would be difficult to find representation at the $75 rate....  Clearly there were an adequate number of competent attorneys available to represent Plaintiffs at the $75 rate."  To which one can only respond, ROTFLMAO.

Ambrose makes several other arguments more serious than that one.  Ambrose notes on pages 9-10 that the statute setting a $10,000 limit does not provide for any exceptions.  Ambrose also implies that the time sheets are, not to put too fine a point on it, padded, although his arguments are mere assertions of opinion, with no facts offered in support of his opinion.  To this writer, it appears unwise for the County, whose unreasonable pigheadedness (a trait which Ambrose himself does not share) led to this lawsuit, to argue that the winning side need not have spent so much time working on the case.

The winners' Reply posted online at
.  http://littlebigdog.net/$Reply.pdf
responds to Ambrose's opinions, then argues that under several legal theories, the $10,000 limit may be exceeded, and that even if the statute does not create an exception to that limit, Arizona courts have created one, and do allow awards to exceed that limit, and also to exceed the $75 an hour limit.

The winners' Reply also returns to the general issue of the County's bad conduct during the entire affair.  On page 8, the Reply notes that "In defending the lawsuit, the County's counsel even admits that 'the Board would have preferred the same interpretation urged by the Plaintiffs.' ...  The County could simply have admitted that errors were made and requested the petitioners to collect more petitions based on the County's original instructions.  The County's defense constituted harassment, was groundless and was not made in good faith."  That's quite an indictment.

Ordinarily, after reviewing the Motion, Answer, and Reply, a judge would rule.  However, in a surprise move, the County filed a supplement to its answer.  See
.  http://littlebigdog.net/SuppMot.pdf
The winners filed a motion to strike that supplement.  See
.  http://littlebigdog.net/StrikeSuppMot.pdf
And the next day, July 6, the County answered that motion.  See
.  http://littlebigdog.net/StrikeSuppAnsr.pdf
So the judge will also have to consider those filings.

This motion, filed on July 5, made some arguments not in the June 25 motion that was being supplemented.  The motion is signed by Adam Ambrose, who also signed the County's Answer, examined above.  The motion to supplement does not explain why the arguments were not made on June 25.

A few hours after being served with the County's supplement, the winners filed a motion to strike it, because it "is late; it offers no explanation whatsoever why it is late; it does not relate to any supervening information or law that has arisen since it filed its Response; it is irrelevant, and appears on its face to raise novel arguments of law."  The winners went ahead and filed their Reply (discussed above), asking the Court for more time to answer the extra arguments in the supplement, if the Court didn't simply strike it.

The supplement's late filing was a bit of a mystery, but the mystery was cleared up the next day, July 6, in the County's answer to the winner's motion to strike the supplement: "Defendant filed its initial response at a time when Britt Hanson, Chief Civil Deputy County Attorney, counsel who had litigated the case, was out of the country and out of contact with the County Attorney's Office.  Upon his return he identified factors the Court must consider when granting an award of fees that undersigned counsel had not put forward for lack of familiarity with the merits of the case."

Attorney Ambrose is doing his best, which is pretty good, but the arguments in the motion to supplement simply didn't require a deep and intimate familiarity with the merits of the case; they are based on procedural matters which any counsel would look at upon beginning to study any case:  What were the causes of action in the case, and who prevailed on which claims?; Who were the original defendants, and who was later dismissed?; and, How specific was the winners' attorneys' affidavit of fees and costs?  Moreover, discussing the affidavit of fees and costs took up most of the County's Answer to the main motion for costs, so Ambrose clearly examined the affidavit in detail long before his July 6 filing claimed unfamiliarity with the affidavit.  Perhaps the filing of the supplement reflects less on the merit of the arguments which Hanson wished to raise, and more on Hanson's bureaucratic power within the County Attorney's office.


III.  Some info extracted from CCIPRA's emails, as the scandal unfolded


A.  February 25, 2011

TUESDAY, MARCH 1, 4 p.m., a public hearing, at Sunsites Community Center at 1216 Treasure Road, about whether to approve the Impact Statement which the law requires as a step on the way to forming the proposed Sunsites Parks Maintenance District.  The website at
    http://www.co.cochise.az.us/LegalNotices/PUBLIC%20NOTICE_SPMD_Online.htm
contains a map of the proposed District, and links to information about such a District in general, and to the proponents of this particular District.

At least one major landowner is opposed:  Linda Nunez, who raises a legal argument:  the District must be formed in compliance with state law -- but it can't be, for one simple reason:  "this golf course does not (and can not at this time) meet the statutory definition of 'Community Park'."  Nunez argues that ARS 48-1201 "defines 'Community Park' as '... an area ... dedicated for unrestricted public use by a county, city or town or private entity'," but that the owner of the golf course, and the tenants, would "not be able to dedicate the property to the public use due to all the underlying liens."  Nunez concludes that since the land cannot be dedicated to form a community park, a District cannot be formed, because ARS 48-1202 says "a district shall ... Be formed only for the purpose of maintaining existing community parks."

Nunez asks the Supervisors to "deny the request to circulate petitions at the hearing on March 1, 2011.  This will give the proponents the opportunity to refile in 6 months ...."  But Nunez sounds ready to battle if the County turns its customary blind eye toward legal arguments not originated from someone on the County payroll:  "I am part of a group of homeowners within the proposed district who intend to file an action in the Superior Court seeking to overturn any order issued to circulate petitions."


B.  March 4, 2011

The Sunsites "golf course" meeting on Tuesday, March 1, was interesting.  There's an audio recording of the parts the public most enjoyed hearing, at
    http://littlebigdog.net/SearleInsistsOnAnswerFromHanson.mp3

Forming a "Park Maintenance District" is basically a two-step process.  The second step is getting enough signatures on a petition -- but that follows the first step, which is getting permission to circulate the petition.  To get permission, the proponents had to submit an "Impact Statement."  Evaluating the Impact Statement was the subject of Tuesday's meeting.  The Supervisors met in Sunsites because of the great local interest in the proposed District.

An Impact Statement is subject to ARS 48-261, which is online at
    http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/48/00261.htm&Title=48&DocType=ARS

According to ARS 48-261(A)(1), "The district impact statement shall contain at least the following information:
    "(a)  A legal description of the boundaries of the proposed district and a detailed, accurate map of the area to be included in the district.
    "(b)  An estimate of the assessed valuation within the proposed district.
    "(c)  An estimate of the change in the property tax liability, as a result of the proposed district, of a typical resident of the proposed district.
    "(d)  A list and explanation of benefits that will result from the proposed district.
    "(e)  A list and explanation of the injuries that will result from the proposed district.
    "(f)  The names, addresses and occupations of the proposed members of the district's organizing board of directors.
    "(g)  A description of the scope of services to be provided by the district during its first five years of operation.  At a minimum this description shall include an estimate of anticipated capital expenditures, personnel growth and enhancements to service."

It takes no more than a quick look to see if an Impact Statement has every item on that check list.  Amazingly, the proponents did not provide every item.  A copy of the original Impact Statement, filed on January 3, is at
    http://agenda.cochise.az.gov/docs/2011/BOSCOM/20110301_109/132_Proposed%20Sunsites%20Parks%20Maint%20District_Filing.pdf
and a copy of amended Impact Statement dated February 24 is at
    http://agenda.cochise.az.gov/docs/2011/BOSCOM/20110301_109/132_Amended%20Impact%20Statement-Signed%202-24-20110001.pdf

The Amended Impact Statement clearly lacks what's required by the last part of checklist item (g), "At a minimum this description shall include an estimate of anticipated capital expenditures, personnel growth and enhancements to service."

Some citizens had been pointing out deficiencies for weeks.  At the meeting, Supervisor Call (chairing the meeting) asked one of the County Attorney's employees, Britt Hanson, if the Impact Statement was complete.  Hanson first said that the Board would decide whether the Statement included everything required -- then Hanson changed position.

The change occurred as follows:  Supervisor Searle then asked Hanson to state, as an attorney advising the Supervisors, whether the Impact Statement was valid.  Hanson's answer:  "We consulted with Mr. Schelling before this.  We believe that there are things that need to be included in the impact statement that are not there.  Mr. Schelling correctly outlined those.  So the answer is, ah, No, we would advise that the Board would need to get additional information in the impact statement in order to approve it."  Searle followed up, and eventually summarized "So it's not a valid impact statement at this point."  Hanson:  "That's correct."  Searle:  "It is not valid."  Hanson said a bit more, which perhaps included "the Board could approve it tonight" -- but at that point, Hanson was mumbling, and what he said is really not clear.  The public laughed and applauded.

Supervisor Call jumped in, noting that the Impact Statement could be approved if it were amended.  Hanson then returned to Searle's point, stating "There's no way to bring this before the Board, to make that decision, until you have this kind of hearing."  Of course, Hanson was wrong; when a filing is made that is defective on its face, no hearing need be set until the required information is provided.  It's a mystery why this hearing was set at all.

Searle expressed unhappiness at being told that the Statement was not valid, after being told the opposite for a week; Searle seemed personally upset with Hanson.

The Board eventually voted to table the matter until March 15, to give the proponents two more weeks to amend the Impact Statement.  The official notice of the March 15 meeting is at
    http://cochise.az.gov/Default.aspx?id=8168
That may create another problem:  the governing statute has time limits which may be impossible to satisfy.  In ARS 48-261(A), Paragraph 2 includes "On receipt of the district impact statement, the board of supervisors shall set a day, not fewer than thirty nor more than sixty days from that date, for a hearing on the impact statement.  The board of supervisors, at any time before making a determination pursuant to paragraph 4 of this subsection ...."  "Paragraph 4" includes "At the hearing called pursuant to paragraph 2 ... the board ... shall ... determine whether the creation of the district will promote public health, comfort, convenience, necessity or welfare.  If the board ... determines that the public health, comfort, convenience, necessity or welfare will be promoted, it shall approve the district impact statement and authorize the persons proposing the district to circulate petitions ...."

In short, the Board is supposed to make a determination at the hearing, and the determination is supposed to come within 60 days after the Impact Statement is filed.  The Impact Statement was filed on January 3; March 1 was the 57th day after filing, and March 15 will be 11 days after the 60-day limit.  Question, when a statute sets a time limit for the BOS to act, but an applicant makes it impossible for the BOS to act within the time limit, may the BOS extend the time limit, and let the applicant obtain more time than the statute allows?  This question was not addressed by the County Attorney's employees at the meeting.  It should have been addressed.  It's not enough for employees to have a law degree, they should actually use it.

Another issue:  a legal argument could be made that the statute doesn't let the Board require amendment of an Impact Statement that simply doesn't have the basic material required by statute.  This argument is a little subtle.  ARS 48-261(A)(2) includes "The board of supervisors ... may require that the impact statement be amended to include any information that the board of supervisors deems to be relevant and necessary."  The key to this argument is the phrase "deems to be relevant and necessary."  That phrase is not appropriate for every bit of information in an Impact Statement.  There is no question that items (a) through (g) on the checklist are absolutely required; a Statement that does not have all those items is defective, period, and cannot be approved.  There is no need for the Supes to "deem" anything.  "Deeming" matters only for additional information, beyond the basics; if the Supes want such additional info, they can give the proponents time to get it and put it into a Statement.  At the meeting on Tuesday, it was absolutely clear that the Statement did not have the basic information required; no "deeming" was involved, and no continuance pursuant to ARS 48-261(A)(2) should have been granted.

Another issue:  cost-shifting.  ARS 48-261(A)(1) includes "If the person desiring to create a district pursuant to this section is unable to complete the district impact statement, the board of supervisors may assist in the completion of the impact statement if requested to do so, provided the bond ... is in an amount sufficient to cover any additional cost to the county."  The proponents in Sunsites have amended their original Impact Statement, yet were unable to complete it properly; the Board has assisted them by giving them -- legally or not -- two more weeks to complete the Impact Statement before another hearing is held.  There must be some cost to the County from all this extra effort; on Tuesday, all three Supervisors, the County Administrator, the Deputy County Administrator, two countem two deputy county attorneys, the BOS "general secretary," and the Elections Commissioner and his chief deputy, all traveled to Sunsites -- and they'll probably all have to do it again on March 15.  Can the County at least try to recover the extra cost, or is the County taking sides by writing off any extra expenses that the proponents cause?

Another possible problem:  bookkeeping.  A proponent stated, with regard to one requirement of law, that back property taxes owed to the County could be treated as ongoing business expenses.  That would be some pretty creative bookkeeping.

Another possible problem:  a case -- reported at
    http://loanworkout.org/2010/12/mastro-friend-owes-9-5-million-judge-rules/
-- involving Barclays North (remember Shadow Mountain?) and Thomas Hazelrigg III.  Things are complicated; basically, a bankruptcy judge has found that Hazelrigg is concealing assets, and Hazelrigg's attorneys say he's not concealing assets and would like to talk but can't because he's taken the 5th in a criminal investigation.  Meanwhile, as to the Sunsites golf course, Hazelrigg signed an agreement as agent of a Nevada corporation though the corp had dissolved 4 months before; and during the meeting a proponent announced that just 15 minutes before the meeting, he had heard of another assignment of assets.  Is getting involved in such a situation how we all want to spend our summer vacation?  No matter how much the people of Sunsites put into the golf course, all their effort might be nullified if the bankruptcy judge considers ownership of the course.

The welfare of Sunsites is the prime consideration.  Obviously, Sunsites has real problems, but that doesn't mean that the proponents of this Impact Statement have the right solution.  Based on statements at the meeting, a lot of Sunsiters feel locked out of the planning.  Why should that be? -- and if it's true, how can the people doing the "locking out" hope to gain unified community support?  At least one compromise was offered in a public comment -- making the course into 9 holes, and making the rest of the course a real park -- and there must be a hundred more such ideas.  Rejecting this Impact Statement, and pushing the whole issue into a 6 month delay under ARS 48-261(A)(4), would give the time that "locked out" locals need in order to be heard.


C.  March 11, 2011

An Amended Impact Statement has been filed:
    http://cochise.az.gov/uploadedFiles/Main_Page/News/AmendedImpactStatement_Complete.pdf
The Supervisors will consider it at the meeting on March 15 -- although the March 1 meeting shouldn't have reset the item, since the original Impact Statement didn't include the information required by law.  The statute allows giving applicants more time if an impact statement contains all the information required by law, and the Supes just want to know a little more; but the statute doesn't appear to allow the applicants to get more time by submitting an impact statement that doesn't contain the minimum info required by law.  In fact, with the original impact statement so defective on its face, the March 1 meeting should not have been set.  The statute also requires a vote within 60 days after the original impact statement was filed, but March 15 will be 71 days after; if there were no specific "time limit" statute, March 15 would be fine -- but "not so fast," when a specific statute overrides general rules.  Oh well, some employee of the County Attorney's will doubtless say "we feel it's okay," as happened during the March 1 meeting.  The breaks just keep coming for the proponents of the District; no "level playing field" here, nosirree.


D.  March 18, 2011

Supervisor English showed the best thinking of any of the Supes.  If she WOULD do her job, she COULD; it's a pity that so often she isn't up for the game.  On March 15 she explained that the choice offered was tearing the community apart, and that it was premature to create a park district without knowing who has title to the property, and that's why she couldn't vote for it.

Supervisor Searle wasn't at his best.  At the meeting, citizens pointed out that nobody in Sunsites knows who really owns the golf course, that Sunsites might get stuck owing $104,000 in back taxes but not having title to or use of the golf course, and that nobody would buy a property whose title was so clouded.  Searle's banking experience should have made him sensitive to these problems.  Yet Searle voted for the proposal, stating that the people should decide.  Searle's words were belied by his conduct:  the proponents got a hearing even though they hadn't done what the law required in order to get a hearing, and a supervisor who lets one side take an unfair advantage can't be taken seriously when he says he respects "the people" -- the record shows that he respects some of them more than others.

Call said little, but basically followed Searle.


E.  April 1, 2011

I previously thought that if the petition to form a district got enough signatures, the Supes would have to approve it, because ARS 48-261(A) includes
    "A.  A ...  community park maintenance district ...  shall be created by the following procedures: ...
    "8.  ...  the board of supervisors shall set a ...  hearing ....
    "10. At the hearing ...  the board of supervisors, if the petitions are valid, shall order the creation of the district."

Now I think I was wrong to rely on ARS 48-261(A) only.  A different statute, ARS 48-271(A), at
    http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/48/00271.htm&Title=48&DocType=ARS
includes "Notwithstanding any provision of law for the formation of a special taxing district, the county board of supervisors has the absolute authority to deny the formation, other than under chapter 4, 11, 12, 17, 18, 19 or 22 of this title, of a special district ...  if sufficient grounds exist for ...  denial."

A Community Park Maintenance District is under Chapter 8, which isn't in the "exempt" list, so the Supes can deny the district's formation, no matter how many signatures the petition gets.

Lesson:  Citizens should keep telling the Supes what you want to happen; your voice may still matter.


F.  August 11, 2011

The petition to form a park district around parts of the Sunsites golf course was filed on Wednesday afternoon.  Thanks to the readers who sent this news.  A copy of the petition is online at
>    http://littlebigdog.net/SunsitesGolfPetition.pdf

The County Assessor is now required by ARS 48-266(I) to "Verify that the petition contains the names of more than one-half of the property owners in the area of the proposed district" and "Determine the total assessed valuation of the property owned by the persons whose names are signed on the petition," then report to the Supervisors.  Assuming that all goes well, the Supes "shall set a day ... for a hearing on the petition," under ARS 48-261(A)(8).

But there may be problems with the petition that it's not the Assessor's job to find, and just in case, the Supes, before holding the hearing set under ARS 48-261(A)(8), "shall determine the validity of the petitions presented," ARS 48-261(A)(9).  And that's important, because the petitions may be invalid because of their failure to use the language required by ARS 48-261 and -266.

Linda Nunez is on this.  Thursday afternoon, she sent appointed deputy county attorney Britt Hanson an email including:
.    ... 48-266 provides:
.        "...A petition ... shall contain a heading that clearly identifies the type of petition circulated and a statement that clearly describes the type of action being proposed..."
.    * In other words, the organizer's petition should have been entitled:  "SPECIAL TAXING DISTRICT CREATION PETITION"
.    Please note that the words "Special Taxing District" do NOT appear anywhere in the organizer's petition.  They want the signing public to believe they are creating a 'park,' not a special tax district.
.    48-266 also contains the following "Notice" language:
.    "Notice:  this is only a description of the district sought to be created by the sponsor of the measure.  It may not include every provision contained in the measure.  Before signing, make sure the exhibits are attached.  You have the right to read or examine the district impact statement before signing."
.    The petition presented by the organizers contains NO NOTICE at all - the words "impact statement" do not appear anywhere in the petition.
.    The errors pointed out above are just the most obvious, and in my opinion, fatal errors contained in the petitions submitted.  There are more but I'll let you find them.
.    I think it would be difficult to argue that the organizer's petition language is "substantially similar" to what is required by law.
.    I look forward to hearing your opinion after you've had a chance for review.
.    Thank you ....

Hanson's response will be interesting.

Meanwhile, a website now defunct reported that Gary Brauchla, one of the proponents of the district, wrote "On July 15, 2011, Grahame Ross with Bingo Investments, LLC, contacted me and told me that during a meeting between him, Henry Dean, Legal Counsel and managing member of Bingo Investments, LLC and David Bingham, of Bingham Family Trust, decided that the golf course has more value in our hands than theirs and are therefore going to 'convey the Shadow Mountain Golf Course with a clean title to the Sunsites Community Parks Maintenance District.'

However, a different email, from Bingo's Grahame Ross to Brauchla, says "the decision has been made to place Cochise Holdings under the protection of the Federal Bankruptcy Court."  As long as the golf course is in bankruptcy (probably 18 months at least), its nominal "owners" won't be able to make any commitments about it, and whoever is in possession of the golf course must pay the bills to keep it in good condition.  If local people pay the golf course's ongoing bills and assume its back debts, but the bankruptcy court doesn't end up putting the course into local people's hands, locals might end up spending a lot of money but getting nothing in return.  That's a risky bet.

In short, the golf course's problems need a solution that can't leave local people stuck owning debts but not the property that goes with them.  The County shouldn't rush into anything before bankruptcy is filed.


G.  August 20, 2011

The organizers of the proposed Sunsites Park Maintenance District have filed their signed petitions, but why?

And the County Supervisors have set a meeting for 4 p.m. on Tuesday, August 30, but again, why?

The County's notice of the BOS meeting is at
.   http://www.co.cochise.az.us/LegalNotices/SPMD_PublicHearing8.30.11_FINAL.htm
The notice concludes:
. "For information regarding the formation process of a parks maintenance district, please call Pat Viverto, Special Districts Coordinator at (520) 432-8974.
. "For specific information about this specific proposed district, please contact any member of the Organizing Board by e-mail at gosunsites@aol.com or by telephone:  520-826-3412 (Monday - Sunday, 8:00 a.m. - 4:00 p.m.).  Members of the Organizing Board are:  Lynn Christensen, Jyme Stoner, Linda Gorton, Gary Brauchla and Tim Heine."

There should be a lot of calls to those numbers, because the proceedings have suddenly become more of a mystery than ever, because the petitions were apparently filed with nowhere near the required number of property owners' signatures.

At 5:24 a.m. on Friday morning, this writer sent County Assessor Phil Leiendecker an email including:
. "The County just posted notice of a meeting for August 30 to vote on the proposed Sunsites golf course park maintenance district; see
.    http://www.co.cochise.az.us/LegalNotices/SPMD_PublicHearing8.30.11_FINAL.htm
. "In order for that meeting to be set, ARS 48-266(I) and (J) require that
.   I. The county assessor shall:
.     1.  Verify that the petition contains the names of more than one-half of the property owners in the area of the proposed district....
.   J. The county assessor shall report the results of the verification to the board of supervisors ....
. "I hear that only a little over 200 signatures were turned in, which is far less than half of the number of property owners in the area of the proposed district.  So it's unclear how you were able to verify that the petition was signed by more than half the property owners in the district.  Can you please clarify for me how you were able to make that verification?
. "May I also ask if you will email an image of your letter of verification, in jpg or pdf or whatever format is most convenient for you?"

At 4:23 p.m., Leiendecker's administrative assistant emailed an answer including "We are in process of checking the petitions.  We verify each signature to the owner of the parcel, mobile home, personal property or central valued property.  The total information we plan on having completed by Tuesday and e-mail to the Board of Supervisor for review."  So, is Leiendecker's office planning on providing more signatures at the last minute?

Seven minutes after the Friday morning email to Leiendecker, this writer sent park district proponent Gary Brauchla an email about the statutes, including:
. "in order for a meeting to be set, ARS 48-266(I) and (J) require that
.   I. The county assessor shall:
.     1. Verify that the petition contains the names of more than one-half of the property owners in the area of the proposed district....
.   J. The county assessor shall report the results of the verification to the board of supervisors ....
. "I hear that only a little over 200 signatures were turned in, which is far less than half of the number of property owners in the area of the proposed district.
. "Also, at the meeting on August 30, the Supervisors have their own obligations, independent of the assessor.  ARS 48-261(A) includes
.   7. The petitions ... shall comply with the provisions regarding verification in section 48-266 and shall: ...
.     (b) Be signed by more than one-half of the property owners in the area of the proposed district ....
.   8. On receipt of the petitions, the board of supervisors shall set ... a hearing on the petition.
.   9. Before the hearing ... the board of supervisors shall determine the validity of the petitions presented.
. "Given that just over 200 signatures are far less than the statute requires, can you tell me what your plan is for the August 30 meeting?  Is the present effort going to be abandoned, and a new start begun -- or something else?  Thanks much for any info you can give on this puzzle."

No answer as of the time this update was emailed out.


H.  August 22, 2011

On Monday afternoon, the County Supervisors have set a special meeting for 4 p.m. Tuesday, August 23.  The agenda at
.   http://agenda.cochise.az.gov/agenda_publish.cfm?mt=ALL&get_month=8&get_year=2011&dsp=ag&seq=209#ReturnTo0
says the meeting will "[c]onsider and make a determination regarding the validity of the Petitions presented by the organizers of the proposed Sunsites Parks Maintenance District ....  [T]he Board of Supervisors may vote to go into Executive Session ...."  The Supervisors shouldn't feel the need to hide a discussion of general law away from public view, but no matter what, they must have the final vote in public.

The basic problem is this:  when the Board Of Supervisors gave the proponents of the Sunsites Park District the go-ahead to circulate petitions, two things were supposed to happen:
-- Under ARS 48-261(A)(5) "the clerk of the board shall determine the minimum number of signatures required for compliance with paragraph 7 ....  After making that determination, that number of signatures shall remain fixed."
-- Under ARS 48-261(A)(7)(b), the petitions shall "[b]e signed by more than one-half of the property owners in the area  ...."

But the clerk counted properties instead of owners, and said:
.  I am hereby certifying the number of valid Petition signatures it will be necessary for you to submit ....
.  Property Owners:
.    Real Property 1,099
.    Centrally Valued Property 10
.    Total = 1,109 * 50% = 554.5 (rounded to 555) + 1 = 556
.  556 Property Owners within the proposed district must sign.
A majority of 1109 is 555, of course, not 556.  But much worse, 1109 is the number of properties, not owners -- and ARS 48-261(A)(5) requires the clerk's number, 556, to "remain fixed."

Result:  a mess.  It makes no sense to require 556 owners to sign, because there are only about 580 owners in the district.  It's been suggested that each property owner have as many votes as properties owned, but that's the same as counting properties, which isn't what the statute requires.  Even if the "556" number could be changed, the change wouldn't be within the time required by statute.  And even if "556" were changed to reflect reality -- about 580 owners, so about 290 owners must sign -- that wouldn't help the proponents, if what we hear is true:  only 218 owners signed, nowhere near 290.


I.  August 26, 2011

At the meeting on Tuesday, August 23, BOS chairman Supervisor Call, without actually calling the meeting to order, took it upon himself to let the organizers withdraw their petition, as requested in a letter from attorney John MacKinnon, representing the proponents of the golf tax district.

THE WITHDRAWAL OF THE SUNSITES "golf park" PETITION is a good thing for the community; it gives Sunsites people a chance for a fresh start.

But what if the proponents simply try the same divisive strategy all over again?  That's suggested by attorney MacKinnon's letter, online at
. http://littlebigdog.net/SunsitesRestart.jpg

It was very good to see the proponents hire a competent attorney of their own.  But is MacKinnon right about giving the proponents a free second bite at the apple?  The Board didn't say so at the special meeting on August 23.  The Supervisors didn't say much of anything, nor vote on anything; Chairman Call just let the petition be withdrawn.

We hear that the proponents are already gathering signatures for a second try -- in other words, starting down the same road that divided the community before, and led to wasting a lot of County work and time.  So let's look more closely at MacKinnon's letter, and then the law.

The letter acknowledges that "the petitions that have been submitted thus far are not in an appropriate form for consideration by the Cochise County Board of Supervisors...."  That's a grudging admission of a point that Linda Nunez was making, that the petitions violated the law.

The letter's admission is not just grudging, it's VERY grudging.  The letter immediately goes on to say that if a second set of petitions is submitted, "the determination of whether or not this district should be formed can be based upon the merits of the application, rather than upon some technicality in the form."  That bypasses a point that Nunez was making:  that the petitions were deceptive and didn't describe what was really going on.  Those are substantive points, not mere technicalities; but we suppose there's a course in law school that teaches attorneys, when their clients have broken the law, to say that the law is a mere technicality.  Does that work for speeding tickets?

The letter also tries to excuse the lawbreaking by blaming it on "a variety of circumstances, including some erroneous information that was conveyed by County staff to the proponents ...."  It seems odd that at the meeting, the Supervisors showed no curiosity at all about who it was with the County that gave bad advice.  It's the Supervisors' job to supervise County employees, and if MacKinnon's letter is true, then the Supervisors have a little supervising to do.

With those excuses as a background, the letter wants to move on:  "Pursuant to A.R.S. 48-461.A.6., these petitioners have one year from the date of the approval of their impact statement to complete the submission of these petitions.  We trust that with some additional time and farther (sic) review, an appropriate number of petitions forms (sic) that are fully compliant with all applicable statutes can be presented to the Board of Supervisors.  Through this course of action, allowing the proponents to procedd in accordance with applicable law," the Board can make a proper determination about what to do.

The problem is that those sentences squeeze two separate issues together.  ARS 48-461(A)6) gives the proponents one year to submit their petitions -- see
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/48/00261.htm&Title=48&DocType=ARS
-- after which the Supervisors will go through a complicated process to evaluate and approve or reject the proposed district, but does any statute contemplate letting the proponents "call a mulligan" after the Clerk of the Board, the County Assessor, and the Board itself have already spent a lot of time, work, and money on petitions that have been submitted?  And if the proponents do get a second chance, should it be free, or should they have to pay for the unnecessary work they've caused?


J.  August 31, 2011

Charles Tidd, a former supporter of the proposed golf course park maintenance district, has changed his mind about some details.  His editorial is at
.   http://www.sunsitessun.com/opinion.html  (a website which is defunct as of December 2012)
and includes:
.   "... I have changed my mind about the supporting the golf course with tax dollars.
.   "I now agree with those who say that it is the responsibility of the local golfing community to completely support the course financially if they wish to have one....
.   "... I want to preserve the green space.  And, because everyone in Sunsites benefits a great deal from that green space, it is most appropriate that it is kept alive and maintained with tax dollars....
.   "... The golf course supporters should completely fund the five holes to the north of Ironwood Road.  It's a beautiful area, but it isn't essential to the well-being of Sunsites ....
.   "... Everyone can support the green space with their tax dollars and the golfing subset can fund their golf course with their own finances and ingenuity.
.   "I call on all residents of Sunsites to consider this ....  It is a way for all of us to move forward together on this issue, and that in itself would be a wonderful thing to see."

We recommend reading all of Tidd's editorial.  Meanwhile, on the other side, the organizers are pushing ahead after withdrawing their petitions.  The Willcox Range News has a story at
.   http://www.willcoxrangenews.com/articles/2011/08/31/news/news02.txt
The whole story will get a lot of attention, and to start it off, here's an email that Gary Brauchla sent out beforehand:
.   "Hi to all,
.   "By now I am sure that most of you have heard the news for you that haven't.
.   "A couple of weeks ago, I turned in the petitions to the County for verification and they set a hearing date to be held on August 30 to review and approve the formation of the Parks District.  Shortly after the petitions were submitted, the leader of the opposition, who is a California attorney, filed a letter to the County attorney indicting the the petitions themselves were incorrect.  The County attorney notified the powers to be and the Board of Supervisors contacted me at 3:30 on Monday afternoon that there was going to be a meeting at the county at 4:00 on Tuesday and that I was to attend.  Suspecting that there was something amiss, we hired an attorney, John Mackinnon, and after reviewing where we were he advised that we request the Board of Supervisors to return the petitions, which we did, because, as was said, the petitions didn't meet Statutory Requirements.
.   "How can that have happened?  Following is a list of the services that Cochise County did for us:
.      "1.  On April 6, 2011, Tom Schelling, Director of Special Elections and Special Districts emailed me, and after reviewing a draft copy of the petition and getting guidance from one of the assistant county attorney, told me that our petition met Statutory Requirements.  It was assumed that he was correct.  Which now has been decided that he wasn't..
.      "2.  Pat Viverto, Administrative Assistance of the Special Elections and Special Elections for Cochise County, emailed and gave me a couple of grammatical corrections for the petition.  Indicating that all was ok with the petition.  Also, she informed me that we needed to have the signatures notarized on the petitions sent to owners that live away from Sunsites.  As it turns out, notarized signatures are not required per Arizona Law.  I am sure that we would have had a lot better response had the signatures not have to be notarized.
.      "3.  To this date, Cochise County can't seem to decide how the counting of property owners is to be accomplished.  It seems that Pima and Maricopa Counties do it differently.  They are leaning toward the method Pima County uses.  To date they are still undecided.  If they use the Pima method, we will have used the correct method.
.      "4.  And this is the big issue, during our initial hearings, the county attorney seemed confused as to whether we had to acquire the signatures of Registered Voters, because of this, the Board of Supervisors decided to require us to obtain their signatures along with property owners and property evaluation.  As it turns out, they don't have the authority to add to State Statutes.  So, after all the effort that we did in getting those signatures was for no reason.
.   "So, what does this mean, it means that we need to re-obtain the signatures on a petition that is being prepared by our attorney.  We now have the advantage of having a list of signatures of property owners that have already signed and don't require notarizations.  I know we are all tired and frustrated, but we are doing this for our community.  And I for one think that it is worth the effort.
.   "In order to accomplish this, we need a strong group of people that can get the job one.  I will be proud to help you achieve our goal."

All of Brauchla's complaints about bad legal advice from the County are justified -- and Linda Nunez, the "California attorney" in Brauchla's letter, had been signalling them for months.  In short, the only good legal advice that Brauchla got was from outside attorneys.  There are three lessons in this for the organizers:  the County Attorney is not your attorney; don't listen to an attorney merely because he says what you want to hear; and don't ignore an attorney merely because you don't like what she says.  If the organizers had listened to Nunez before, they and the County would have saved a lot of time and work.

In this writer's opinion, Tidd's editorial and Brauchla's email are not exclusive.  Tidd wants to limit the size of the publicly-supported area, and Tidd and Brauchla might be able to agree to push ahead with a petition on Tidd's description.  Now, if they could figure out a way to reach out to Nunez and others who have been vehemently opposing the district, the Sunsites community might really come together.  We wish them all luck.


K.  September 4, 2011


Charles Tidd, a supporter of the Sunsites park maintenance district, has changed his mind about some details.  Now he doesn't want the district to include the part of the golf course which is no good for anybody but golfers.  See
.   http://www.sunsitessun.com/opinion.html
which includes:
.   "I now agree with those who say that it is the responsibility of the local golfing community to completely support the course financially if they wish to have one....
.   "So, I'm in favor of the passage of the park district plans with all of the resulting tax money being used only to keep the green space alive and well maintained....  The golf course supporters should completely fund the five holes to the north of Ironwood Road.  It's a beautiful area, but it isn't essential to the well-being of Sunsites ....
.   "This is a fair solution that will most likely leave the community with both a nice green space/park and an open golf course as well....
.   "It is a way for all of us to move forward together ... and that in itself would be a wonderful thing to see."

While Tidd is trying to heal the community after a bitter fight, the proponents of the district want to start the same fight over, based on the Range News article at
.   http://www.willcoxrangenews.com/articles/2011/08/31/news/news02.txt
The article shows that the proponents are still following the same kind of awful legal advice that led the first petition to collapse.  The article quotes County Supervisor Searle as "explaining that the County Attorney's office 'had a problem with some wording on the petitions.'  He explained that there was not an issue with the number of signatures on the petitions.  'It was strictly a legal issue,' Searle said.  'The language did not meet state statutes.'"

Searle is wrong about a couple of things --
-- for months, several citizens, notably Linda Nunez, pointed to the legal problems that Searle mentions, but until the last minute, the County Attorney's office insisted on ignoring the law.  Searle should thank Nunez for her persistence, not pretend that the County Attorney's office voluntarily paid attention to the law.
-- the number of signatures is definitely an issue.  After the first petition drive collapsed, district proponent Gary Brauchla circulated an email including "Cochise County can't seem to decide how the counting of property owners is to be accomplished.  It seems that Pima and Maricopa Counties do it differently.  They are leaning toward the method Pima County uses.  To date they are still undecided.  If they use the Pima method, we will have used the correct method."

The problem is that for the petitions that were just withdrawn, the County counted a property owner's signature as many times as the number of properties he owned.  For instance, one owner's signature got counted 101 times, because of owning 101 properties.  Yet the statute says to count "property owners," it doesn't say to count properties owned.  Without violating the statute by multiple counting, the proponents had nowhere near enough signatures.  To slip around the law, the organizers need to count "properties owned" instead of "property owners."

Brauchla must have heard somewhere that Pima County counts properties owned, not property owners.  Pima County says otherwise.

I called the Pima County Assessor's office and talked with their authority on counting signatures, and after our talk I sent him this summary of what he said about "counting property owners in a petition for a park maintenance district:  a property owner's signature gets counted once, no matter how many properties he owns.  For instance, if one person owns 90 lots with 90% of the assessed valuation in a proposed district, and ten other people each own one lot with 1% of the assessed valuation ... there would be 11 property owners, so [5] other people would have to sign in order to meet the 'over one-half of the property owners' part of the statute.  Please let me know if I understood you right."

His answer was "if this question was relating a Fire District then you understood correctly.  Haven't not worked with the formation of a park maintenance district I take the 5th."  The type of district doesn't matter, because the same statutes govern the formation of both types of district.  Whatever ARS 48-261 through -266 mean for fire districts, they mean for park districts too.

So Pima County won't support Brauchla in his hope of counting properties owned, instead of property owners.

Brauchla may have a beef with the source of his misinformation about Pima County.  Brauchla might also want to ask Searle why he's ignoring problems that Brauchla knows about.  But most of all, we hope the organizers stop their divisive tactics, and try healing Sunsites by working with Tidd, Nunez, and other people who've been locked out of the process.


L.  September 9, 2011

The proponents of the Sunsites golf course district have started a second petition drive.  A copy of the cover letter, dated August 31 and signed by all five of them, is online at
.   http://littlebigdog.net/SunsitesNewLetter.jpg
It says the first petition drive "was successful and we obtained more than enough signed petitions for the formation of the district."

The actual figures provided by the County contradict that assertion.

Here's a link to the tally of signatures and property values provided by the County Assessor on August 22:
.   http://littlebigdog.net/AssessorTotalsEarlier.jpg
The petitions were 15 signatures and $301,967 short.

The tally was revised on September 6, and the Clerk of the BOS mailed out the revision on September 7.  Here's a link to the revised tally:
.   http://littlebigdog.net/AssessorTotalsFinal.jpg
The petitions were still 12 signatures and $109,280 short.

The County never said anything to give the organizers the idea that their petitions had succeeded.  Here's the text of the email that included the revised totals:
.   Sent: Wednesday, September 07, 2011 4:38 PM
.   To: 'Gary Brauchla'; 'Lynn Christensen'; 'jmacklaw@cableone.net'
.   Cc: Hanson, Britt
.   Subject: Revised Summary Sheet/Sunsites Parks Maint. District Signature Validation
.   Greetings,
.   On Tuesday, Sept. 6, 2011, I received from the Assessors, a revised (corrected) Summary Sheet of the results of the signature verification process for the proposed Sunsites Parks Maintenance District.
.   Even with these changes, however, the effort fell short of achieving an adequate # of signatures-the shortfall is less though.  It is a moot point, given that the Petitions have been withdrawn, but I am endeavoring to keep everyone up to date on the status.
.   Thank you,
.   Katie Howard
.   Clerk of the Board

So why would the organizers tell anyone that they obtained enough signatures in the first petition drive?


M.  September 24, 2011

The proponents of a golf course park district in Sunsites have sent out letters asking the original signers to sign again.  The letters say that the petition got enough signatures the first time.  The obvious effect of such a statement is to try to generate a "bandwagon" effect.  But the statement is false.  The petition did not have enough signatures, even though the County bent over backwards in the golf course's favor.

The proponents appear to be too wrapped up in trying to get a short-term victory, to be sensible about their long-term place in the community.


N.  October 7, 2011

SUNSITES GOLF COURSE PARK DISTRICT PROPOSAL

Lately the organizers don't seem to be talking to anyone outside their circle.  They're continuing to seek signatures, and trying to whip up enthusiasm by claiming that they got enough signatures in their first try.  The new letter asking for signatures, at
.   http://littlebigdog.net/SunsitesNewLetter.jpg
says the first petition drive "was successful and we obtained more than enough signed petitions for the formation of the district."  That's good cheerleading, but it's absolutely false.

The County's official tally, at
.   http://littlebigdog.net/AssessorTotalsEarlier.jpg
showed the petitions short by 15 signatures and $301,967 in net assessed value.  The "recount" at
.   http://littlebigdog.net/AssessorTotalsFinal.jpg
showed the petitions still short by 12 signatures and $109,280.  On September 7, a County email noted that "the effort fell short of achieving an adequate # of signatures ...."  The organizers would have been defeated -- if they had let the Supervisors see the count.  The organizers did NOT get enough signatures -- and who can trust a campaign built on denying that truth?


O.  October 24, 1011

Thanks to Linda Nunez for passing around this report of the Sunday meeting of the golf course proponents' group:
.  "Lynn started the meeting by saying that the golf association board has taken some actions that he wanted to let us know about.  He said that they are out of money and therefore have let all paid employees go effective Nov 1, including the cook at the restaurant.  He said that they are raising golf memberships by 25% effective Nov 1 but that you can get a membership at the old price of $1,800 any time prior to Nov 1.
.  "Gary Brauchla then took over to update on the status of the petitions.  He said that to get all the signatures last time took 6 months but that they have enough signatures now and it only took 6 weeks.  He said they plan to turn them into the county sometime this week.  He is confident that they are fine since they had a competent attorney help them.
.  "Gary B. said that Gary Horton offered to donate a Sunizona lot to the golf course so they can auction it to raise money.
.  "They are going to need lots of volunteers to work in the restaurant and around the golf course.  He said they have no intention of closing.  He said they want committees and ad hoc groups to assist with planning etc and even invited the opposition to be on those committees.
.  "Peggy Morey stood up and said she would donate $500 to help keep them going if 8 other people would do the same right now.  10 people (including Peggy) offered to write checks.
.  "The DOC (dept of corrections) crew will be doing much of the grounds work once the district is formed.
.  "The meeting ended at about 4:20.  My estimate of numbers in attendance is approximately 100.
.  "On a side note, Gary Brauchla came up to me after the meeting [and] said that they are on a 'day to day' basis -- that ... 'no one knows what will happen with Bingo or with Dan Wood or with anyone.'  That is the first time he has mentioned Dan Wood who is a prospective buyer of the golf course and surrounding properties.  He is the one who has been negotiating with Bingo for several months....  [W]e had previously been told [this negotiation] was confidential.  Apparently, Bingo is keeping Gary informed so it is no longer confidential...."

Based on that report, it doesn't appear that the organizers have acknowledged their misrepresentation about getting enough signatures the first time; or the problem with counting properties owned instead of property owners, as the law requires.  If the district's organizers continue on their course, and the threats of citizen lawsuits were serious, the whole affair may be in court before too long.


P.  November 12, 2011


The main event at Tuesday's 10 a.m. BOS meeting will be a public hearing to "Determine the validity of the petitions received from the organizers of the proposed Sunsites Community Park Maintenance District."  This is the second time the petitions have been set for a Board meeting.

> THE OPPOSITION HAS HIRED A LAW FIRM

"Today the opposition to the tax district retained the firm of Munger Chadwick of Phoenix, Tucson & Tubac.  They are very experienced and actually quite confident about our legal remedies."  That's from prominent opposition member Linda Nunez, dated November 9.

> THE ORGANIZERS DIDN'T HAVE ENOUGH SIGNATURES ON AUGUST 23

On August 23, 2011, a hearing was set on the first batch of petitions, which didn't have enough signatures.  The organizers claim otherwise, but the Clerk of the Board Of Supervisors set out the truth in an email months ago:
.  "Sent: Wednesday, September 07, 2011 4:38 PM
.  "To: 'Gary Brauchla'; 'Lynn Christensen'; 'jmacklaw@cableone.net'
.  "Cc: Hanson, Britt
.  "Subject: Revised Summary Sheet/Sunsites Parks Maint. District Signature Validation
.  "Greetings,
.  "On Tuesday, Sept. 6, 2011, I received from the Assessors, a revised (corrected) Summary Sheet of the results of the signature
verification process for the proposed Sunsites Parks Maintenance District.
.  "Even with these changes, however, the effort fell short of achieving an adequate # of signatures -- the shortfall is less though.  It is a moot point, given that the Petitions have been
withdrawn, but I am endeavoring to keep everyone up to date on the status."

> ON AUGUST 23, THE ENTIRE PROCESS WENT OFF THE LEGAL TRACK

Before the time set for the hearing on August 23, the organizers' attorney wrote all three Supes asking to withdraw the petitions.  At the time set for hearing, all three Supervisors were present.  Supervisor Call, the Chair, never even called the meeting to order, much less took a vote.  On his own authority, he let the organizers withdraw their petitions.  However, there is no such thing as Call's "own authority," except for things like asking a secretary for more pencils:  "The powers of a county shall be exercised only by the board of supervisors or by agents and officers acting under its authority and authority of law;" ARS 11-201(A).  Supervisors can act only in a meeting, by the vote of a quorum.  Under the Open Meeting Law, "'Legal action' means a collective decision, commitment or promise made by a public body;" ARS 38-431(3).

> TUESDAY'S MEETING IS THE "SECOND BITE AT THE APPLE"

State law may not allow a "second bite at the apple."  The most directly relevant statutes are ARS 48-261 through -266, and -1201 through -1214, all available via links at
http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=48
The statutes talk about "a hearing" and "the hearing" when a set of petitions is submitted, not a string of hearings.

There's another implication for Call.  If, back on August 23, his intent in avoiding a hearing was to let the organizers escape the consequences of not having enough signatures, and other problems, then he was trying to benefit one side in a dispute.  That would expose him to charges of violating his oath of office, which requires him to "impartially discharge" his duties; ARS 38-231(E).

> THE ORGANIZERS DON'T HAVE ENOUGH SIGNATURES FOR NEXT TUESDAY

For November 15, the organizers have come up with 565 signatures -- but it's a phony count.  They're not counting the number of owners, they're counting the number of properties owned.  That's not what the law says to do.  The petitions must "Be signed by more than one-half of the property owners in the area of the proposed district," ARS 48-261(A)(7)(b).  That's plain language, requiring more than half the property owners; yet the organizers are arguing that it means the owners of more than half the properties.  To the best of this writer's knowledge, every other county in Arizona follows the plain language of the statute, and counts property owners, not properties owned.  The statute is clear, and there is no reason at all to listen to the organizers argue about what the statute might mean if it were not clear.

Other legal problems exist.

> WHAT MIGHT HAPPEN NEXT TUESDAY?

The law requires the BOS to consider every objection to the petition.  The BOS may order creation of the proposed district only "if it appears after consideration of all objections that the petition is signed by the requisite numbers of registered voters;" ARS 48-1206(A).

There are objections to three or four dozen signatures.  This writer thinks that in a matter of such great public interest, it would be better for the Supes to orally consider each objection, to verify that each objection has actually been considered.

If the Supes find that there are enough signatures, then a lawsuit by the opponents is extremely likely -- and in any such lawsuit, Supervisor Call is likely to be named a party, based on his conduct on August 23.  This personal risk to Call might lead him to recuse himself from even discussing this matter.  Searle has set a precedent for recusal in the past.  Call's recusal would leave only English and Searle voting.

The Supes might find that there are NOT enough signatures, yet allow the organizers a third bite at the apple.  This too would invite a lawsuit, since the statute appears to allow only one hearing -- and this time, unlike on August 23, there will have been an actual hearing, so that the issue will be ripe for court.

Of course, the organizers might ask before the meeting to withdraw their petitions again, or perhaps to add more petitions.  If any more petitions are added, then the whole hearing must be delayed for at least another ten days (that's the minimum period the BOS has for considering petitions).  During any more delay, the public dialogue on the issue might reach new levels of intensity.


Q.  November 13, 2011


This discussion is based on the Assessor's new list -- an Excel spreadsheet -- of signatures for and against the proposed Sunsites golf course district.  I've posted the spreadsheet online at
http://littlebigdog.net/SunsitesGolfAssessorCount.xls
Given the behavior of online spreadsheets, good luck in opening it.

The only reason for a new list is to cure the problems of the original list -- including not having enough legal signatures.  The organizers say they had enough signatures before -- but they really, really didn't.  The BOS Clerk has emailed "On Tuesday, Sept. 6, 2011, I received from the Assessors, a revised (corrected) Summary Sheet of the results of the signature verification process for the proposed Sunsites Parks Maintenance District.  Even with these changes, however, the effort fell short of achieving an adequate # of signatures ...."

The new list is no better.  Some of its problems are discussed below (and we think the opponents have found other problems).

> NOT ENOUGH INFORMATION ABOUT WHO'S A REGISTERED VOTER

ARS 48-1201 through -1214 specifically govern the creation of a community park maintenance district.  If a requirement is in these specific statutes, it must be met even if more general statutes (like the statutes starting at 48-261) don't list it.  One specific requirement is in ARS 48-1206(A):  the BOS may establish the district only "if it appears after consideration of all objections that the petition is signed by the requisite numbers of registered voters".

The Supervisors acknowledged the "registered voters" requirement way back, at a meeting in Sunsites on March 1, 2011.  The Sunsites Sun has posted the last 15 minutes of that meeting at
http://www.youtube.com/watch?v=6tOlHDbAN9E
and about 9 minutes in, Supervisor Searle notes that the "registered voters" requirement is a major factor in ensuring a "level playing field."

The new spreadsheet counts signatures from people who can't possibly be registered voters; for instance, Fannie Mae, the Federal National Mortgage Association.  Another example is four LLCs having to do with the golf course itself:  L190, L190-1, L190-2, and L190-3; like Fannie Mae, L190 can't vote, and if it could, the people behind it couldn't vote three more times.  There are more examples.

Even for "possibles," the Assessor hasn't told the Supes what they need to know in order to decide if a signer is a registered voter.  So on Tuesday, the Supervisors won't be able to make the determination required by law -- and they can't legally approve the district.

> THE ORGANIZERS DON'T HAVE ENOUGH SIGNATURES, BY ANY TEST

Last week one of the organizers sent around an email saying the organizers had met "both thresholds" -- meaning 1) more than half the property owners, and 2) more than half the property value in the district.

Those two thresholds come from ARS 48-261(A)(7), one of a group of statutes that generally govern the creation of a "fire district, community park maintenance district, sanitary district or hospital district".  The specific requirement in ARS 48-1261 is in addition to the general requirement in 48-261.

The organizers appear to be relying on the new spreadsheet, which says there are 1110 property owners, and that 569 have signed.  However, there are not 1110 OWNERS, only 1110 PROPERTIES.  Confusing owners with properties is an error we've talked about before.  The discussion in our last update was kindly picked up by the Sunsites Sun, in the article now leading off at
http://sunsitessun.com

Way back in March 2011, the County Supervisors distinguished owners from properties.  A video from the March 1 meeting is posted at
http://www.youtube.com/watch?v=6tOlHDbAN9E
and part of the March 15 meeting is at
http://www.youtube.com/watch?v=CDn20F9v4EI
The March 1 video is especially interesting starting about 7 minutes and 55 seconds in.  Supervisor Call says he thought a property owner got one vote for each property he owned; the audience groans negatively; Supervisor Searle clarifies "there's three different thresholds.  You have the number of property owners, you have the number of -- actually -- so, a property owner that may have 10 lots, they only have one vote when it comes to the total number of property owners.  Where it comes into play is on the assessed valuation.  They may have a higher assessed valuation, so not only would they have to get 50% of the actual property owners, the number, then also the assessed valuation.  That would give them an advantage on the assessed valuation."

And about 9:23 in, Searle continues "They have to have over 50% of the actual property owners, to find that -- that -- and if one person owns 20 lots, or 30 lots, or 50 lots, that is one property owner, not 50 property owners."  A little over a minute later, at about 10:46 in, after a motion is made, Call asks a deputy county attorney "Are we on track?", and the answer is affirmative.

So there's no excuse for anybody involved -- not the Assessor, and not the organizers -- to be confused about one property owner getting one vote, period.  Yet as you look down the spreadsheet, you will see many examples of an owner being counted once for each property owned; for instance, John and Dena Hesser, with 109 properties, are counted 109 times.

By such means, the spreadsheet tally indicates that a majority of owners favors the district.  However, one opponent of the district, Linda Nunez, by looking at the data in the spreadsheet instead of at the Assessor's confused tally, says there are about 583 owners in the district, but only 214 signed in favor -- far less than a majority.

On Tuesday, the Supervisors will have to follow state law, not the Assessor's mangled spreadsheet.

You can email the Supervisors at
.  District 1, Pat Call:  pcall@cochise.az.gov
.  District 2, Ann English:  aenglish@cochise.az.gov
.  District 3, Richard Searle:  rsearle@cochise.az.gov


R.  November 15, 2011

At this morning's BOS meeting vote on the proposed district in Sunsites, the No vote was Ann English, for District 2; Pat Call and Richard Searle, for Districts 1 and 3, voted Yes.

Searle said before voting that he was "frustrated and embarrassed" by County employees, in particular appointed deputy county attorney Britt Hanson and County Administrator Mike Ortega.  Searle called Hanson's legal advice "inconsistent, confusing, and contradictory."  Then Searle complained about the work done by Ortega's staff.

Then Searle apologized to the community for himself, saying "there should have been better oversight."  Searle meant that in March, the Supervisors plainly and clearly told staff, when counting signatures on petitions, to count one signature per owner; nonetheless, staff counted one signature per property, so owners of multiple properties "got more votes."  People have complained for months that staff was not following the instructions that the Supes gave in March, so Searle's surprise came as a surprise.

Then Searle said he was embarrassed by "how the community of Sunsites has handled this issue."  Searle blamed opponents of the golf course for not coming up with a better plan.

The other Supes appeared to share Searle's sentiments, though the others were not so vehement.

Plenty more happened during discussion, but more analysis must wait for another day.  This is just a quick bulletin to let people know today's result.


S.  November 28, 2011

WILDCAT COUNTY SUPERVISORS PAT 'N' DICK

County Supervisors Pat Call & Richard Searle recently voted to form the Sunsites golf course park maintenance district.

>> Ordinary people were ignored by Supervisors Pat 'n' Dick.  Every residence in the district must pay about $104 a year for the golf course.

$104 per year is only $8.67 a month, you might say if you're Pat 'n' Dick.  They each get paid about $6500 a month to Supervise.

But $8.67 is dinner for a week or more, using cheap tv dinners that poor people buy.  If you're living on spaghetti or macaroni, $8.67 can fill you up for a month.  If you were already scraping by -- what will you do now?

>> The law also was ignored by Supervisors Pat 'n' Dick.  Below are some examples; every statute cited is available via
http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=48

A park maintenance district may be formed only to maintain existing community parks, ARS 48-1202(2), and a "community park" is land which has been dedicated for unrestricted public use, ARS 48-1201(5).  There's been no such dedication here.

A park maintenance district must not exceed 160 acres, ARS 48-1201(5).  The article by Shar Porier at
http://www.bensonnews-sun.com/articles/2011/11/27/news/news04.txt
reports that an extra parcel must still be removed from the lease agreement.  Pat 'n' Dick voted for the district anyway.

When petitions for forming a district are circulated, there are three requirements for counting signatures:

-- 1, each signer must be a property owner, and each property owner counts only once, no matter how many parcels he or she owns, ARS 48-261(A)(7)(b).  On March 1, Supervisor Searle ordered County employees to count each owner only once.  Despite that, the employees counted owners many times, once per parcel.  On November 15, the Supervisors appeared surprised and unhappy to learn this.  Attorney Hanson said Cochise County had always counted this way, and so did Yuma County.  However, the Yuma County Administrator has emailed to Linda Nunez, an opponent of the district, that in his opinion "your signature would only count as one ....  Although you own six (6) parcels, you can only be an 'owner' once."  Did Hanson give the Supervisors incorrect information about Yuma county?

-- 2, each signer must be a registered voter; ARS 48-1206(A).  Hanson gave a rambling argument which Shar Porier's article summarized as "the state statute had been changed ... now special districts no longer have to have the signatures of registered voters."  Hanson didn't mention that the other statutes might have been cut as redundant, nor did he mention that it isn't his job to argue away the plain words of statutes.  Supervisors Pat 'n' Dick ignored the "registered voter" requirement staring them in the face, in 48-1206(A).

-- 3, the total value of property owned by signers must be more than half the value of property in the district; ARS 48-261(A)(7)(b).  The list barely met this qualification, by counting properties owned by entities that cannot vote, like Fannie Mae, a federal agency.  The Supervisors never even looked at the value of properties owned by proper signers.

>> Citizens haven't seemed pleased at the spectacle of our Supervisors Pat 'n' Dick.

From an email circulated by Sunsites resident James Martin:
.  "... I live in ... a poor retirement area originally started by a NJ Corp as a retirement community.  They built a PGA length golf course and not much else and many backruptcies later the course was closing.  One of our [Supervisors] found an archaic law on the books that allows for a special tax district to help pay for maintenance (electric bills $10,000 a month).
.  "... The Bos said
.     "1. 50+1% parcel value in designated area.
.     "2, 50+1% of all property owners in district and
.     "3. 50+1% of registered voters in district.
.  "When it became apparent that the organizers ... could not meet numbers two and three, they dropped number three and changed the counting for number two from owners to parcels, so owners of multiple lots got multiple votes.  Less than 30% of residents in [the] proposed district signed the petitions, yet the BOS approved the motion last Friday.
.  "Those of us against have had our constitutional right to vote ripped out from underneath us.  Please forward to all those on your lists and watch for us on Youtube...."

Here are comments by our friend Diana Barton to Searle:
.  "I watched the Youtube video of the Sunsites vote [i.e., on November 15] and saw your presentation regarding Deputy County Attorney Britt Hanson....
.  "I also watched the March [1, 2011] meeting ... in Sunsites and saw Pat Call asking Mr. Hanson to clarify the property owner position for signatures and was appalled when Mr. Hanson's answer was 'I think so.'  Then I saw that you had to clarify for Mr. Hanson the deputy county attorney how you thought the statute read....  Why are we paying a Deputy County Attorney ... when I could have given you [an] 'I think so' answer ...?
.  "... maybe it is time to vote in a new County Attorney ... to give good guidance to the Deputy County Attorneys ...."

Jean Belluomini's letter in the Willcox paper at
http://www.willcoxrangenews.com/articles/2011/11/23/opinion/letters/letter1.txt
includes
.  "I am appalled at the manner in which the petitions ... were approved.
.  "1. Per Arizona Revised Statutes (A.R.S.) 48-261(A)(7)(b), the petitions ... must 'be signed by more than one-half of the property owners in the area of the proposed district ....'
.  "2. In A.R.S. 48-1201(11), '"Owner" means the person in whose name legal title appears by recorded deed, or the person in possession under claim of title, as the person exercising acts of ownership for himself or as the personal representative of the owner ...'
.  "Short and simple ... property owners ... are persons and not parcels of land.  A parcel of land cannot own itself....
.  "The way Cochise County counted the petition signatures was by parcels of land, and not by property owners....  This is not what is required by law and not the will of the majority.
.  "... The Board of Supervisors should not be allowed to ride roughshod over taxpayers.  They should be held accountable for their poor decisions, their lack of knowledge and the fact that they took an oath of office to follow the laws of Arizona."

The first version of Shar Porier's article elicited the following reader comments from people other than this writer:
-- from Gene Gilbert:  "I truly find it hard to believe that ... people could honestly vote for a Tax District to fund a PRIVATELY owned golf course....  If they can do this for a golf course, they can do it for a fast food store or any privately owned business.  Next time it might be in your back yard."
-- from J B L:  "Mr Gilbert should not be too surprised -- it was only last month the same two supervisors authorized a nice new road primarily for the benefit of a private rich man's driving course outside Willcox."
-- from ARE YOU KIDDING ME:  "... KEEP TAXING PEOPLE MORE IN A DOWN ECONOMY TO KEEP A BROWN GOLF COURSE GOING.  THERE ARE SO MANY PEOPLE THAT ARE LIVING PAY CHECK TO PAY CHECK NOW, AND JUST TRYING TO PUT FOOD ON THE TABLE AND GAS IN THEIR CARS TO GET TO WORK.  NOW THEY HAVE TO PAY ANOTHER TAX.  THE PEOPLE WHO WANT TO KEEP IT UP AND OPEN SHOULD HAVE TO PAY FOR IT!  I KNOW WHO NOT TO VOTE FOR WHEN THE TIME COMES!!!"
-- from Jerry:  "... A.R.S. 48-1201 ... 48-1202 ... 48-1206 ... 48-261 ... 48-266 ... have been ignored by the Cochise Board of Supervisors by approving this Tax District."

After minuscule changes, the news stories were re-posted about a week later, with the original comments removed to the archives.  A comment to the re-posting is from Wes:  "I don't have a dog in this race but if people would read the whole thing and who will profit from it, just doesn't seem to pass the smell test."  See
http://www.willcoxrangenews.com/articles/2011/11/23/news/news01.txt

>> Activists disgusted with our Supervisors Pat 'n' Dick are at
.   http://notaxdistrict.com

The Supervisor who came off looking best in this debacle is Ann English.  Whether or not we agree with everything she says, she's the only Supe who doesn't consistently try to make life harder for ordinary people.  Let the other Supes act the same, and we'll trip over our own feet in the rush to compliment them.


T.  December 5, 2011

WILDCAT SUPES VIOLATE STATE LAW ABOUT FORMING SUNSITES DISTRICT

-- IN RESPONSE, CITIZENS "OCCUPY SUNSITES" RALLY 10 A.M. SATURDAY

There's an "Occupy Sunsites" rally next Saturday, December 10, 10 a.m. to noon, in Sunsites, "by the billboard next to Tombstone Realty on Frontage and High Street."

Jean Belluomini, on the political front, has emailed around:
.  "... I would like to challenge everyone to personally ask at least two people you know who are against the tax district to join us (more is better).  Whether it's for 30 minutes or 2 hours, every person there will be making a statement about the injustice of what the Board of Supervisors has done.
.  "I have been working hard at getting news coverage and have two prospects.  Although they haven't firmly committed yet, I'll keep at them.  One prospect has said that if they can't cover the event, they at least want photos to go along with a story.  So, we need everyone to show up and form a united front.
.  "All of us are frustrated that the Board of Supervisors has ignored the law, and we're all anxious that someone, somewhere will come to our rescue, whether in the form of monetary contributions or knowledgeable help.  But until that happens, our fate is in our own hands.  United we can make a difference, fragmented we will lose whatever advantage we have garnered since the first of the year.
.  "Please don't pass up this opportunity to make a difference in Sunsites.  We have ALL worked so hard on this.  Now we're in the home stretch, let's hit a home run with this rally!  See you there!!!!"

-- ANOTHER RESPONSE:  POSSIBLE LAWSUIT AGAINST COUNTY AND OTHERS

Linda Nunez, on the legal front, has emailed around:
.  "We received a letter from attorney John Munger's office this afternoon outlining the procedure we would follow with a lawsuit against the County, the Board of Supervisors, the individual Supervisors in their capacity as Supervisor, all other parties which likely will be the five organizers including Lynn Christensen, Gary Brauchla, Linda Gorton, Tim Heine and Jyme Stoner, the District itself ... and most likely the Sunsites Community Golf LLC as tenant.
.  "We must file our complaint no later than Dec 20 ....  Each of the defendants has 20 days to file their answer.
.  "We will request ... an evidentiary hearing at which we can provide testimony, exhibits, witnesses, and legal arguments....
.  "'The court shall affirm the agency action unless after ... the evidentiary hearing the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.' ...
.  "We, of course, believe that the court will find all of the above, but that is what courts are for -- they look at this impartially and then make a ruling.  It is not impossible that they could rule against us.  The good news is that we get a pretty solid answer after that evidentiary hearing (and don't have to wait a year or two for a trial.)
.  "The whole case is basically presented at the evidentiary hearing.  The court can make a ruling on the spot [or] study the record and later make a ruling.
.  "If we do not file an action to have the court review we will be barred from filing any action after December 20, 2011.  Not doing anything of a legal nature is of course another option.
.  "We have previously been told by Munger's office that the retainer to file the complaint would be in the neighborhood of $20,000.  That would undoubtedly NOT include filing fees, court costs, or costs of process of service on each of the defendants.  I would expect that the full retainer would be used up (and probably more) by the end of the evidentiary hearing.
.  "Law suits are expensive.
.  "The other suggestion they made was for us to pursue a recall of Richard Searle, which has previously been talked about by several of the Sunsites Concerned Citizens.  That could be either in addition to or instead of legal action.  It would do nothing for us as far as the district goes, it would just make us all happy to see Searle recalled."

A followup email from Nunez added:
.  "After receiving the letter from Munger's office yesterday I sent them an additional question regarding reimbursement of our fees in the event that we win our case [and] whether or not we would have to pay the BOS's fees if we lost our case....
.  "The general principle is that, if you win, the Court must award you your fees.
.  "However, there is a cap on the amount that will be awarded of $75.00 per hour....
.  "This provision does not apply for the County.  In other words, even if the group [loses,] they will not get the County's fees awarded against them.  This is an obvious attempt to level the playing fields when suing the government."

Other people have suggested a grand jury investigation, although it's doubtful that our County Attorney would ever go after the Supes for following poor advice from his own office.


U.  December 9, 2011

There's an "Occupy Sunsites" rally tomorrow, Saturday, December 10, 10 a.m. to noon, in Sunsites, "by the billboard next to Tombstone Realty on Frontage and High Street."  Linda Nunez emails that under 40% of the property owners in the Sunsites Golf Course Park Maintenance District approved forming the district, although a majority was required.  People have reason to be unhappy.  Jean Belluomini emails around:
.  "... I would like to challenge everyone to personally ask at least two people you know who are against the tax district to join us (more is better).  Whether it's for 30 minutes or 2 hours, every person there will be making a statement about the injustice of what the Board of Supervisors has done.
.  "I have been working hard at getting news coverage and have two prospects....  One prospect has said that if they can't cover the event, they at least want photos to go along with a story.  So, we need everyone to show up and form a united front.
.  "All of us are frustrated that the Board of Supervisors has ignored the law, and we're all anxious that someone, somewhere will come to our rescue ....  But until that happens, our fate is in our own hands.  United we can make a difference, fragmented we will lose whatever advantage we have garnered since the first of the year.
.  "Please don't pass up this opportunity to make a difference in Sunsites.  We have ALL worked so hard on this.  Now we're in the home stretch, let's hit a home run with this rally!  See you there!!!!"

Supervisor Searle has tried to explain away his vote for the golf course district on November 15.  Here's his tale of woe:
http://littlebigdog.net/SearleDucking.jpg
That's the text of an email from Searle to a constituent who objected to his vote in favor of the Sunsites golf district.  Below are some of Searle's statements -- with translations.

"... I am very disappointed in how County staff has handled the petition process" -- TRANSLATION, It's not my fault.

"... it was my understanding and the intent of the Board to limit the petitions signatures to one signature per owner" -- TRANSLATION, Let's pretend that what matters is what people thought, instead of what the state law says.

"Due to the interpretation of the regulations by the Assessors Office and the Clerk, the number given to the organizers last Spring was based on total properties, not total owners" -- TRANSLATION, It's not my fault.

"The County Attorney advised the Board that we could not change that number" -- TRANSLATION, They made me do it.  Searle's current argument ignores the many times during the meeting when he was told that the BOS could exercise its discretion -- advice which, for once, agreed with what the state laws say.

"We were put into a situation where any way we went would be wrong" -- TRANSLATION, One side said I'd been breaking the law, while the other side said I'd been following the law, and I was afraid of being sued for following the law.

"As a business owner you know that regardless of intent, if your employee obligates you to do something in writing, it is hard to get out of it" -- TRANSLATION, if my employee promises that I'll break the law, then I have to break the law.

"The decision I made was based on my belief that the community of Sunsites is better with the golf course kept alive than allowing it to die" -- TRANSLATION, when I like something, I'll vote for it, never mind if it's illegal.

"I would be more than welcome to discuss this further with you if you would like" -- TRANSLATION, Don't hold it against me that I refused to face any of the issues anytime before the vote; now that I've voted and what you say doesn't matter, let's talk.

As lame as Searle's excuses are, he at least didn't repeat one obnoxious statement he made on November 15.  The minutes from that meeting -- online at
http://agenda.cochise.az.gov/docs/2011/BOS/20111115_24/24_11.15.11.pdf
-- include Searle's statement that he is "embarrassed and frustrated by how the community of Sunsites has handled this" including especially "the allegations of greed, ignorance and/or corruption that have been spread for the last six to seven months."  TRANSLATION:  I take offense at being criticized for ignoring the law and facts, and violating the law.

Searle is currently ignoring what he was told during the meeting, which has been confirmed since:  that although Hanson said Yuma County counts properties owned, Yuma actually counts owners.  Hypothetical TRANSLATION of Searle's silence into words:  "I will rely on what counsel says -- even when I complain at the same meeting that counsel has given inconsistent, contradicting and confusing advice."

Searle's current excuses also don't address the law's requirement to count signatures from registered voters only.  See ARS 48-1206(A) at
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/48/01206.htm&Title=48&DocType=ARS
Astoundingly, an appointed deputy county attorney argued at the meeting that that requirement could be ignored because it did not appear in OTHER statutes.  The argument was scandalous to make, because it ignores the Supes' basic duty:  to execute the laws.  Here's what a manual for every public official in Arizona -- at
http://www.azag.gov/Agency_Handbook/Agency_Handbook.html
-- says in Section 2.4 ("Duties and Responsibilities of Public Officers"):  "Public officers must impartially execute all laws and rules for which they are responsible.  The Arizona Supreme Court stated in Button v. Nevin, 44 Ariz. 247 ... (1934):  'Public officials may not violate the plain terms of a statute because in their opinion better results will be attained by doing so.  They have but one duty, and that is to enforce the law as it is written, and, if the effect of their action is disastrous, the responsibility is upon the Legislature and not upon them.'"

Searle didn't just break the law, he broke his oath of office, to
.  "solemnly swear (or affirm) that I will support the
.  Constitution of the United States and the Constitution
.  and laws of the State of Arizona, that I will bear
.  true faith and allegiance to the same and defend them
.  against all enemies, foreign and domestic, and that I
.  will faithfully and impartially discharge the duties of
.  the office of ... according to the best of my ability,
.  so help me God (or so I do affirm)."
See ARS 38-231(E) and (A), at
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00231.htm&Title=38&DocType=ARS

Things are getting so bad that pretty soon, the residents of Searle's district may decide to take the easy way out and just declare him a king, not subject to the law like ordinary people.


V.  December 20, 2011

The complaint against illegally forming the Sunsites golf tax district was filed today, Tuesday.  A copy is online at
http://littlebigdog.net/SunsitesGolfInCourt.pdf

Public curiosity may now be satisfied, although there may be some discomfort for Supervisors Call and Searle.

A book from 1890, "American Lecturers And Humorists," has an apropos anecdote.  Andrew Carnegie is talking about introducing Matthew Arnold to Henry Ward Beecher (top interest-killing sentence of all time).  Arnold had savaged Beecher in print, but
.  "He expressed a desire to hear the noted preacher, Mr. Beecher; and we started for Brooklyn one Sunday morning.  Mr. Beecher had been apprized of our coming so that after the services he might remain to meet Mr. Arnold.  When I presented Mr. Arnold he was greeted warmly.  Mr. Beecher expressed his delight at meeting one in the flesh whom he had long known so well in the spirit, and, grasping his hand, he said:
.  "'There is nothing you have written, Mr. Arnold, which I have not carefully read at least once and a great deal many times, and always with profit, always with profit!'
.  "'Ah, then, I fear, Mr. Beecher,' replied Arnold, 'you may have found some references to yourself which would better have been omitted.'
.  "'Oh, no, no, those did me the most good of all,' said the smiling Beecher, and they both laughed."

Appreciating that criticism is a way to learn; what a concept.

Searle, for instance, might learn to stop blaming others.  For instance, in 2007, during a scandal about Ocotillo Road, Searle palmed responsibility onto a County employee:  "Ultimately he was the man in charge when all of this happened."  See
http://www.bensonnews-sun.com/articles/2007/12/05/news/news2.txt
And just before making the vote that has him in court now, Searle blamed many others:  "the information and advice Mr. Hanson have given has been inconsistent, contradicting and confusing....  the Board staff has also made its fair share of errors....  he is also embarrassed and frustrated by how the community of Sunsites has handled this."  As to himself, the most Searle can make himself admit is that "ultimately as representative for the community he is partially responsible."  See the minutes at
http://agenda.cochise.az.gov/docs/2011/BOS/20111115_24/24_11.15.11.pdf

One thing will be interesting to see:  Will Searle trust the County Attorney's office to understand the legal issues now, and defend him, since that office's advice got him into this trouble?


W.  January 10, 2012

Let's start with a carryover about the P&Z Commission.  Ever since the Commission was formed, Section 2 of the ordinance has said that "The membership shall consist of nine members who shall be qualified electors, residents, and real property owners".  Repeat:  NINE MEMBERS, WHO SHALL BE REAL PROPERTY OWNERS.  That language clearly doesn't let one person be counted as nine owners just because he owns nine properties.  But during the Sunsites golf course mess, deputy county attorney Hanson said that under state law, counting owners meant counting the number of properties owned.  If "Hanson's rule" were followed for the P&Z Commission, then one property owner who owned nine pieces of property would count as nine property owners -- and could make up the entire P&Z Commission, all by himself!  No wonder a lawsuit was filed.

The Complaint was filed in court on December 20.  A defendant's Answer has to be filed within twenty days after being served with the Complaint.  We heard that some defendants were served, through the County Attorney's office, on December 20.  Counting the days using the method in the Civil Rules, any defendant served on December 20 had to file an Answer by January 9.  That's odd, because a deputy county attorney was quoted in a newspaper article as saying "he has to file a response by Jan. 10."  See
http://www.willcoxrangenews.com/articles/2011/12/28/news/news01.txt
Missing a filing deadline can lead to default judgment against some defendants, which would certainly entitle them to sue for malpractice.  Of course, perhaps we were misinformed, and no defendants were served on December 20; or even if they were served on December 20, perhaps the deputy county attorney eventually realized that he was about to Answer a day late; and as a last protection for a defense attorney, the same rule that allows default judgment also has a loophole:  a default shall not become effective if the defendant Answers within ten days after plaintiff moves for default.  So in practice, the worst that'll happen if a defense attorney couldn't count is a little public embarrassment.

The golf course tax district board met on January 9.  Thanks to Linda Nunez for this summary, slightly abridged (parenthetical notes are in the original [and ellipses ... and anything in brackets were added by this writer]):
.  "1.  Gary Brauchla was appointed Chairman of the Tax District.  Tim Heine was appointed Secretary....
.  "2.  Item # IV on the agenda was the lease with L-190-2 & L-190-1:  Gary Brauchla reported that there is currently NO LEASE between the tax district and Bingo but that they expect to have one negotiated hopefully by the February meeting (!?!).  He also reported that they will need to define the size of the golf course in that lease.  (So, in other words, the 'park' is still in excess of the statutory maximum of 160 acres.)  [At the meeting on November 15, the 30-day limit for fixing the size of the district was noted.]
.  "3.  Item # V is the lawsuit:  Gary reported that the Board had a Special Meeting on both January 2 and on January 3, executive session, and that the Board agreed to have Jack McKinnon represent the board in the lawsuit.  (Please Note: Neither the Jan 2 or Jan 3 meetings were noticed to the public and of course there was also no agenda posted anywhere.)  [As readers of these updates know, the Open Meeting Law is a major tool in the constant fight against old-boy back-room gummint; it's shocking to see the golf course district apparently starting off by violating the OML.]
.  "4.  Item VI, the John Deere equipment lease:  Lynn Christensen said that until the lease on the golf course was completed they would be unable to complete a transfer of the lease to the tax district.  (Note: Lynn did say that an "application has been made" [therefore] this Board already made a decision to accept the assignment of the lease without any proper vote at a noticed meeting.)  [At the meeting where Call and Searle approved the district, John MacKinnon, the organizers' attorney, said "this district can only spend money to maintain this property [;] it cannot spend money to acquire this property or to pay off those leases."  Are the organizers planning to have the district pay off the lease, despite what their own attorney said at the meeting?]
.  "5.  Item VII Liquor License:  Lynn reported that the board is looking at getting a government liquor license because the cost is $150 instead of a standard license fee of $2,000.  But he said that the tax district doesn't qualify for a government license according to statute.  Lynn reported that the board may ask for an AG opinion on that issue.
.  "6.  Item VIII:  Department of Corrections labor for use on the golf course.  Gary reported that he has already made the application to the dept of corrections and are expecting 4-5 prisoners to be working on a daily basis.
.  "7.  Item IX: Lynn C was appointed to begin the process of creating the rules and regulations for the tax district.
.  "The meeting was adjourned about 4:20 p.m.
.  "8.  Item X Financial report:  Tim Heine handed this duty off to Judy Leiker who was introduced as the Accounts Manager.  She said that she didn't have a financial report to give since there wasn't enough information yet available.  She said they were planning to open a bank account at Great Western Bank.
.  "9.  Call to the Public:  Only one person spoke.  She asked what were the details of the John Deere lease.  Gary Brauchla said that it is a lease purchase of equipment and that the LLC (Shadow Mtn Golf Association) pays $1,600 per month on that lease with an additional 1 1/2 years to go.  There was no other discussion or information provided about the lease."

To this observer, it seems that there are major differences between what was said at the November 15 meeting, and how the district is proceeding.  For your own comparison, here's a link to the November 15 minutes:
http://agenda.cochise.az.gov/docs/2011/BOS/20111115_24/24_11.15.11.pdf

If the report about the district board meeting of January 9 is accurate, it's no surprise that people roped into the district are continuing to organize against it.  Thanks to Roger Lance, one of the plaintiffs in the Sunsites golf course lawsuit, for sending the following items:
.  SUNSITES CONCERNED CITIZENS RALLY
.  JANUARY 14TH AT 11:00
.  HIGH STREET AND 191
.  THE LATEST COURT UPDATE INFORMATION
.  DONATIONS NEEDED FOR LEGAL FUND
.  REMEMBER THE RAFFLE
and as a bonus, for ordinary people in Sunsites, who don't get special favors from Call or Searle:
.  LUNCHEON FOR THE FOOD BASKET
.  JAN. 17 11:30 / 1:00
.  SUNSITES COMMUNITY CENTER
.  THEY NEED OUR HELP


X.  January 22, 2012

Linda Nunez reports that she was on her way to the Saturday meeting of the golf course proponents when she stopped by the golf clubhouse and saw that the meeting was reset for Monday, 4 p.m.

The agenda for the meeting is "Park budget proposal for 2012." There seems to be some question over whether the golf tax board hopes to lay a tax on "appraised value" or on "assessed value," which is roughly three times more. Since the tax is up to 18%, the "value" taxed can make a big difference in the amount of tax.

Linda Nunez, one of the opponents of the golf tax, sends along a few hopes for Monday's meeting:
. "I hope that the ... assignment of the John Deere lease by the golf LLC to the tax district is also discussed at some point.
. "The board needs to (1) reveal ... which of the members of the Sunsites Golf Association LLC signed the original lease [or] personal guarantees, and ... are ALSO members of the park tax board, and (2) what efforts ... the park tax board has made to determine if assignment of the lease to the district is the best economic move for the tax district ....
. "Any of the tax district board members who would be assigning their own personal guarantees to the district should abstain from any vote regarding the lease."

To this writer, Nunez's point seems compelling. No golf tax board member can legally vote for anything which will give him or her a direct financial benefit; in fact, no member who might be affected by the vote can even participate in the discussion. And no member can vote for the golf course to take on a debt which won't give the course some new benefit, but will just do a favor for somebody else.

This writer also has another reason for agreeing with Nunez's point: When County Supervisors Call and Searle voted to form the golf tax district, emphasis was placed on the principle that public money could only be used for ongoing expenses, not old debts. "Old debts" include pre-existing guarantees by individuals to cover the John Deere lease. No member of the golf tax board may vote for the district to take over that old debt.

Of course, this writer doesn't expect anyone on the golf tax board to pay attention to this point. The board will probably receive the same low-quality "go along to get along" advice which the County Attorney's office pitches out by the bale. But politically, in this election year in which more people are paying attention to County high-jinks than ever before, County Supervisors Call and Searle may not be happy to see heir emphatic words so quickly ignored by the golf tax board.

On the other hand, it's possible that Searle isn't paying much attention to the situation. Nunez also writes that "the Sunsites golf association LLC is NOT a non-profit and has never been. Richard Searle has mentioned that they're a non-profit many, many times." We'll see if Searle makes his future comments more accurate.


Y.  February 10, 2012

Here are parts of an email from Linda Nunez to Gary Brauchla, of the golf tax board, noting that members of the tax board can't vote to have the board assume a debt that they owe individually:
.  "Prior to ... any further action ... on the proposed assignment of the John Deere Lease from the Sunsites Golf Association to the SPMD [Sunsites Park Maintenance District -- i.e., golf tax district], your board needs to place the matter on the agenda of a public meeting.
.  "Since some ... members of the SPMD board were signatories on the original lease, and ... also signed personal guarantees for payment on the lease, those ... members are precluded pursuant to ARS 38-503 from participating in discussions regarding the proposed assignment and are ineligible to vote on the issue as well.  Those members ... must also make known that information in the official records of the district.
.  "[38-503 'Conflict of interest ....  A. Any public officer ... who has, or whose relative has, a substantial interest in any contract, sale, purchase or service to such public agency shall make known that interest in the official records ... and shall refrain from voting upon or otherwise participating in any manner as an officer or employee in such contract, sale or purchase...']
.  "In addition ... the SPMD is required ... to go through a procurement process.  The tax district is not permitted to simply unilaterally decide to take on a major obligation without any justification to the public at large."

This writer recalls one or two Supes emphasizing, when they voted to approve the tax district, that golf tax board members must NOT use the district for their personal benefit in any way.


Z.  February 18, 2012

3, SUNSITES GOLF TAX DISTRICT UNRAVELING CONTINUES
- A, two board members quit to avoid one problem
- B, another problem may remain
- C, County Attorney's office spins a tangled defense
- D, golf tax board goes on the offensive

3A, TWO BOARD MEMBERS QUIT TO AVOID ONE PROBLEM:  Linda Nunez, a prominent opponent of the golf tax district (and opponent also of Richard Searle in the Republican primaries) attended the golf tax board's meeting on Feb 14 and reports that:
.  "They read a letter from Lynn [Christensen] offering his resignation and explaining that he was going to remain as chairman of the [Sunsites Community Golf Association] and that his resignation from the tax district board would avoid any conflicts of interests [presumably when the board discusses taking over individual debts of board members].  They accepted his resignation and appointed a new board member....
.  "Tim Heine ... mentioned that he was resigning ... so that he, too, could avoid any conflicts of interests.
.  "[W]hen the agenda for this meeting referred to ["Consider Lease Assignment from Sunsites Community Golf LLC"] they were talking about the ground lease on the golf course.  Gary [Brauchla] stated that the lease was 'with the attorneys' ... and that they were working on the language.  They then tabled the rest of that discussion.... what the tax board is proposing is that a lease between L190 and SCGA which is currently in default (non-payment of taxes) be assigned to the tax district."

3B, ANOTHER PROBLEM MAY REMAIN:  If the tax board is proposing that a lease be "assigned to" -- and paid off by -- the tax district, that would contradict a statement by John MacKinnon, the attorney for the proponents, before the BOS voted, that "this district ... cannot spend money ... to pay off those leases."  The minutes are at
http://agenda.cochise.az.gov/docs/2011/BOS/20111115_24/24_11.15.11.pdf
Page 3 of the minutes has MacKinnon's statement, and also has all of the language from the minutes that is quoted below.

3C, COUNTY ATTORNEY'S OFFICE SPINS A TANGLED DEFENSE:  An opinion from the Attorney General's office says that "where there is no dedication to unrestricted public use, there is no community park for the board to certify" and that "a community park itself must not exceed 160 acres."  The AG also stated how to count signatures on the petition for a park:  count an owner just once, not once for each piece of property owned.  Now the Sierra Vista Herald has an article by Shar Porier -- at
http://www.svherald.com/content/news/2012/02/17/249674
-- with some interesting quotes from appointed deputy county attorney Britt Hanson.  Based on what the Herald article says about counting signatures, Hanson is trying to distance himself from the decision to give property owners one signature for every property owned.  Also, the article quotes Hanson as saying "By statute the park must be 160 acres or less in size and must be dedicated to unrestricted public use.  The plaintiffs in the lawsuit challenge whether those criteria have been met."  Actually, Hanson himself admitted on the record that the park district was too large:  the minutes have him saying "If formed, the district will acquire a lease that would put the park district over 160 acres because it includes an extra acre; this discrepancy will need to be addressed, not today but once the district is formed."

3D, GOLF TAX BOARD GOES ON THE OFFENSIVE:  Gary Brauchla, president of the golf tax board, has sent around an email including 1) the opinion from the AG's office, 2) a sentence from attorney John MacKinnon ("It appears to be an 'informal analysis' which would not have legal effect like a formal Attorney General Opinion") and 3) the following:
.  "Shortly, you will all be hearing and reading information from those opposed to the Park District pertaining to the following INFORMAL ANALYSIS OF CURRENT LAW REGARDING COMMUNITY PARK FORMATION, from one of the Assistant Attorney Generals.  You must keep it firmly in mind that this is merely an opinion and should have no impact on the Judicial process that is currently within the Courts.
.  "The opposition is going to say that the three issues of the Law Suit are being declared as illegal by this opinion.  Nowhere in this opinion does the Assistant Attorney General say that anything is Illegal, but lets look at these three issues:
.  "I.  'In order to qualify as a public park, private land must be dedicated by the owner to public use.' / The District's Attorney, John MacKinnon, feels as though that the DEDICATION, will be resolved shortly within the the Partial Assignment of Lease Agreement that will soon be considered by Sunsites Community Golf LLC, Sunsites Community Park Maintenance District and L190-1 & 2.
.  "II.  'In order to qualify as a community park, the parcel must not exceed 160 acres.' / There is no question that this statement is correct, the Statutes clearly state that that is law.  However, when this information was sent to the Senator Griffin, she was told that the PARK contained 161 Acres which is and was incorrect and misleading.  I have included information from Walter Domann, Cochise County GIS Coordinator [list of parcels omitted; their sizes are added correctly.]  As can be seen, the acreage is well within Statutes, and that is no LIE!
.  "III.  'Provisions relating to the counting of signatures.' / According to the Assistant Attorney General, 'The legislative history of this provision is not definitive.'  This will have to be determined in a COURT OF LAW, not by an INFORMAL ANALYSIS.
.  "You can be sure that those opposed will play this information to the fullest, just remember, the formation of the SUNSITES COMMUNITY PARK MAINTENANCE DISTRICT was NOT formed ILLEGALLY!  We followed the Letter of the Law, never once told any LIES, and never once defamed the character of anyone.   The MAJORITY of the good people of the DISTRICT can and should be proud of their accomplishment."

Item I admits that no dedication exists, three months after the BOS voted to form the district -- although the law required a dedication to exist before the vote.  Before the vote, the proponents of the district argued that a document existing then was a "dedication."  Now they're making a different argument.

Item I also talks about a "Partial Assignment of Lease Agreement" -- which needs clarification, in light of item 3B above.

Item II says the park contains less than 160 acres, and that it was incorrect to tell Senator Griffin that it contained 161.  Compare that to the contents of item 3C above.

Item III discounts the legal opinion letter to Senator Griffin as "informal."  Here are the headers on the email:
.  From: "Harding, Art" <Art.Harding@azag.gov>
.  To: "Gail Griffin" <GGriffin@azleg.gov>, "Reed Spangler" <rspangler@azleg.gov>
.  Cc: "Coolidge, Courtney" <Courtney.Coolidge@azag.gov>
.  Date: Tue, 14 Feb 2012 14:48:40 -0700
.  Subject: Informal Analysis of Current Law Regarding Formation of Community Park Districts
.  To: Art Harding, Director of Legislative Affairs
.  From: Thomas Collins, Assistant Attorney General
.  Re: Analysis of Current Law Regarding Community Park Formation.
Apparently, Thomas Collins entitled his original email "Re: Analysis of Current Law Regarding Community Park Formation."  Art Harding, in forwarding that email, wrote a subject line saying "Informal Analysis of Current Law Regarding Formation of Community Park Districts".  Collins didn't call his own email "informal," that tag was added later.  In any case, we don't think anyone in the Attorney General's office gave Griffin a casual answer; and in any event, what the AG said is exactly what many people were saying for a long time before the meeting.

Finally, it wasn't a majority, but well under half, of district residents who signed a petition for the district.  That makes Brauchla's final paragraph look ironic.


AA.  The lawsuit proceeds.

In the lawsuit about the Sunsites golf tax district -- you can read the Complaint at
http://littlebigdog.net/SunsitesGolfInCourt.pdf
-- the opposing sides have agreed to reduce the number of parties without fighting about the issue in a series of motions.  The remaining Plaintiffs are CFM Partners LLC, Stronghold Properties LLC, Linda Nunez in her capacity as trustee of the CFM Partners LLC Profit Sharing Trust, and Roger and Louise Lance; the remaining Defendants Cochise County and the Board Of Supervisors.

The Plaintiffs' "Opening Brief" was served on February 21.  See
http://littlebigdog.net/SunsitesGolfTaxPOpenBrf.pdf

Now the Defendants have 45 days to file their own brief, then the Plaintiffs get 20 days to reply.  For all these rules, see
http://government.westlaw.com/linkedslice/default.asp?SP=AZR-1000

For the events and outcome of the lawsuit, go back to the top of this writeup.