WHY NO SEARLE
Originally from the 2008 election; now in process of updating
for the 2012 election, starting with Searle's spending tax dollars to
do a big favor for a private racetrack club. The whole subject is
"aka the Road To Inde." A separate page on the subject, which
will soon be integrated into this page, is at
Look for more info about the Bowie Power Plant, too.
Meanwhile, here's some of the older stuff:
A list of incumbent Richard Searle's worst mistakes --
abuses of power,
and failures to understand the legal limits to his power,
which harm Cochise County citizens,
and cost the county money.
The Scandal On Ocotillo Road
Ignoring Ocotillo Road residents' wishes, causing big expenses for the county
totally rewritten October 24 -- emails may expose a scandalous county coverup
and updated on
October 27, in response to an reaction purportedly from Searle
Stabbing Sunsites Citizens In the Back
to favor a big real estate development which keeps flopping
links to minutes of the Sunsites BOS meeting added November 3
Being a Sock Puppet In the County's Water Follies
Playing along with foolishness that will ruin the county, but help his puppet-master
added October 31
Using Party Politics To Silence Another Supervisor
and disenfranchise the voters in that supervisor's district
Ignoring the Lesson Of the "Smith Ranch" Housing Project
and pushing "master-planned communities" at people who want to be left alone
added October 20
Hiding Behind the "Advice Of Counsel"
to protect himself from the consequences of decisions he makes without regard to facts or law
Dodging Responsibility After the Whetstone Mudslide
Ignoring what local residents said,
then ducking for cover after the residents turned out to be right
added October 24, updated October 31
The Faria Dairy Stink That Searle Caused
A mess Searle created because he ignored the limits to his power
added October 16
Allegations that sound like the same old recklessness
added October 24
Stuck On the Abominable County Building Code
An useless, expensive, despised program -- yet Searle clings to it
and makes sure it doesn't get a real evaluation
added October 16, updated October 26, updated again October 31
Going Along With Fraud At the Planning Department
Approving high fees for the public -- knowing that they were illegal
added October 19
What Isn't Allowed Is Forbidden
The infamous Regulation 307 is fine with Searle
added October 16
Silencing the Public
Another mistake which Searle has "stubborned up" on
added October 16
Searle's Abominable Record On the Open Meeting Law
Depriving the people of their right to see what really goes on,
and sometimes denying his own eyes
added October 19
Letting the Planning Department Bend the Law
voted on by the P&Z Commission but the Planning Department never
brings them to the Board Of Supervisors for a final vote
and Searle won't answer questions about this apparent violation of law
added October 31
This list will be updated right up to election day;
please keep checking back. Thanks.
Searle voted against how his constituents wanted,
his explanations don't add up,
and there's the appearance of a county coverup,
added October 26 -- with links to county emails
Updated October 27, in response to a reaction purportedly from Searle
And updated October 28, in response to a reaction from Mike Ortega
from inside county government have surfaced, and may make a simmering
scandal boil over. The amount of county money involved is over
half a million dollars, and county residents along Ocotillo Road were
put to a lot of trouble.
Highway Department employee Allon Owen accuses County Supervisor
Richard Searle of giving road repair work to an incompetent contractor,
and trying to keep the deal secret. Searle blames Owen for
incompetent supervision of road work, and finalizing a contract without
telling the Supervisors.
The emails from inside county
government make it hard to see how there can be a compromise
position. The emails have been posted on the internet, and links
to the emails are at the end of this article.
A note up front: Allon
Owen stated emphatically, on October 26, 2008, that it was not he who
provided the emails, and he does not know who it was.
The Ocotillo Road story
begins in 1993, when the road was damaged by heavy contractor traffic
during a project on I-10. Allon Owen, of the county Highway
Department, recommended that the Supervisors set a 15-ton weight limit
on Ocotillo, and charge fees to the three companies whose trucks caused
the problem. Each firm paid $16,250, which went for repairs
completed in 1994.
In 1997, Huachuca Concrete
wanted to open another gravel pit on Ocotillo Road. There was
great opposition from local residents. The Supervisors denied
Huachuca Concrete's request, reduced the weight limit on Ocotillo from
15 to 12 tons, and directed that no more "overweight permits" would be
granted. Since a loaded Huachuca Concrete truck weighs over 12
tons, the company was unable to use Ocotillo Road for hauling, so did
not open the pit.
In 2005, Huachuca Concrete
approached Owen about using Ocotillo Road to haul gravel. On
February 4, 2005, Owen reviewed the facts in a letter to Searle.
Owen estimated that one Huachuca Concrete truck caused 5000 to 7800
times as much road wear as a car, so 5-10 trucks per day would be
equivalent to 25,000-78,000 cars. The existing traffic on
Ocotillo was roughly 740 to 1300 cars per day, depending on precisely
where traffic was counted.
Huachuca Concrete and the
county Highway Department worked out a deal. The county would
lift the weight restriction and fix up the road, and Huachuca Concrete
would defray some of the costs. The county would incur an
in-house expense of about $227,000, and Huachuca Concrete would provide
15,000 tons of aggregate base, and 1800 tons of rock chips, all worth
On April 26, 2005, the deal
went before the county supervisors. Ten citizens spoke against
the deal, and noted that the road work would cost much more than
$250,000. A letter from one of the ten named 22 other residents
who also opposed the deal.
Supervisor Newman was against
the deal, Supervisor Call was for it. Searle had the swing
vote. Searle said Ocotillo must be repaired "sooner or later,"
and that having a gravel pit in the area could save the county up to
$30,000 a year in hauling costs. The vote was Searle and Call Yes, Newman No.
Citizens kept voicing
opposition at later Supervisors meetings. On September 13, 2005,
a citizen noted defects in the contract with Huachuca Concrete, defects
showing sloppy drafting, like naming Benson, Montana instead of Benson,
Arizona, and naming I-90 instead of AZ-90. She also said
"Huachuca Concrete had already violated two State laws by failing to
obtain a storm water permit before moving any earth." On October
25, 2005, she pointed out that a "design concept report" estimated over
a million dollars for just part of the construction, far more than the
supervisors were told when they first voted.
On top of all this, the new pavement began falling apart immediately, and much of the road had to be torn up and rebuilt.
None of these problems would exist if Searle had listened to the citizen opposition to the Huachuca Concrete deal.
After the repaving of
Ocotillo fell apart, an outside evaluation concluded that Huachuca
Concrete provided good gravel, but that the county adulterated and
Allon Owen felt he was being
"set up" for problems he had not caused. On November 19, 2007,
Owen wrote a blistering email to Searle, stating that $236,000 of
in-house costs were wasted, and $388,000 in payments to the outside
contractor, for a total of $624,000 wasted. Owen said that the
outside contractor was not qualified to do the job, but "upper
management" -- including Searle -- had made an agreement with the
contractor to repave the road, and were trying to carry out that
agreement without taking the matter to the full Board Of Supervisors,
even though the County Attorney said that could not be done.
Searle's version is
different. He says that Ocotillo Road needed to be rebuilt, that
Huachuca Concrete offered a good deal, that Highway Department
management ignored county workers who spoke up about a serious problem
with an outside contractor, and that it concerns him "that the
Department would finalize the settlement of a contract dispute of such
significance without any consultation of the Board of
Supervisors." Searle publicly laid the blame on former Highway
Department head Scott Dalrymple and on other Department employees.
Searle also argues that
Huachuca Concrete could sue the county for imposing weight limits aimed
at keeping the company from using its gravel pit. However, the
12-ton weight limit on Ocotillo Road was imposed in 1997 precisely to
keep Huachuca Concrete from opening its pit, and the company did not
sue. Searle's argument casts doubt on his motivations for voting for the deal with Huachuca Concrete.
Emails between Owen, Searle, and other county employees, have been posted online. Links are at the bottom of this article.
Owen's November 19 email is
the original "blowing the whistle" email, and his December 6 email to
Searle is very blunt: "When did you know [of the contract cost
increasing by about $600,000]? Am I correct that this was done
without board knowledge? How did a contract of this magnitude get
thru purchasing without board knowledge if that is in fact what
happened? ... I know you knew of this and that you were keeping
[it] from your colleagues on the Board. That's when I blew the
whistle and I will keep blowing it.... Once I know that there is
a safe harbor for other county employees, I will give the special
investigator, a list of 8 prominent employees that you have attempted
to manipulate and intimidate during your time on the board to do things
that they felt were inappropriate without proper authorization."
The next day, December 7,
2007, County Administrator Mike Ortega sent Owen an email asking, by
December 11, for "the specific laws and county policies and procedures"
that were violated, and for contact information for the "8 prominent
employees" that Owen mentioned.
Owen answered, on December
10, 2007, that "I am asking for an investigator independent of the
Board," and that he was not an attorney or professional investigator,
so "can't cite laws and ordinances, nor do I have the time." He
did, however, discuss the events he meant, and offer to meet with
Ortega and give him the names of all the witnesses and what they had
A few hours later, Ortega
answered "I will be performing the review myself," and "I need ... your
knowledge of laws that were broken and and policies and procedures that
were violated.... this is the info I need, so if you decide a
meeting is necessary, please plan to bring this info with you."
Those emails make it appear
that when Owen offered to provide full information about witnesses and
what they would say, Ortega declined to meet unless Owen also provided
a complete list of applicable laws, policies, and procedures.
Insisting that a witness recite not just facts, but also all the
applicable law, is not customary in investigations. Whatever
Ortega's intent, his email created the appearance that the county was
dragging its feet in investigating Owen's allegations.
On December 11, 2007, Owen
sent Ortega an email stating "I am not an attorney and cannot cite
statutes. But from my experience I know the following ....
My concern is that Mr. Searles either knew or should have known that
the above mentioned changes took place for this project without board
approval [and] may have acted outside his authority as a board member
by tacitly approving the above mentioned changes without board review
and approval. He may have essentially acted unilaterally [so]
contributed significantly to the loss of taxpayer resources ...."
Owen added "I will not
divulge the names of others ... until I am assured that something is
really going to be done.... I will not subject them to what I am
having to go thru until there is safety. You have enough to
That seems to be where the
county stopped. Owen stated on October 26, 2008, that he is
unaware of any investigation ever being conducted.
Owen added that he still wants an investigation.
Follow this link to the October 27 update, responding to Supervisor Searle's comments: To October 27, re Searle
Follow this link to the October 28 update, responding to County Administrator Ortega's comments: To October 28, re Ortega
ONLINE POSTING OF THE CORRESPONDENCE PROVIDED SO FAR:
The name of each posting begins "Tillo" (short for Ocotillo) and ends
with the date of the email, for instance 041228 for a message posted on
December 28, 2004. Here are links to all the postings, in
chronological order (except for the bottom one):
October 27 update:
An email signed "Richard Searle" is circulating. It purports to be his
comment in response to the allegations by Allon Owen about the Ocotillo
Road scandal. For purposes of this discussion, I'll assume the email is genuine. Its
full text is attached below this update; meanwhile, here's a
First, Searle says Owen "could not give [County Administrator] Ortega
any proof," but that an internal county auditor investigated. Owen,
however, says he offered to tell Ortega 8 witnesses and what they would
say, but Ortega declined to meet unless Owen also listed every
law that was supposedly violated. Why put that roadblock in the way of
somebody who wants to tell you facts? And what kind of an investigation
would never talk to Owen?
Second, Searle calls Owen's claims "unsubstantiated" and "wild." But
Searle can't prove that, since there's been either no county
investigation, or only a feeble imitation of one. It's Searle's
rhetoric that is unsubstantiated and wild. Why would Searle use such
rhetoric, if he had facts to back him up?
Third, Searle says "no individual Supervisor has the ability to ... make
the decisions that [Owen] suggested that I did." Searle is evading the
issue. Owen clearly wasn't arguing about what statutes say, he was
stating facts about acts Searle did. Searle, by merely saying what the
law allows, isn't saying what acts he did.
Fourth, that same statement also shows Searle to be playing with words.
Sometimes supervisors do ignore the limits of the law when they talk to
county employees. In fact, several times during the last four years,
Searle's disregard for the legal limits to his power has led Searle to
generate other problems, like the Faria Dairy lawsuit, the Raytheon
mess, illegally high county fees, and more. Recklessness about the laws
limits to his power about Ocotillo Road fits Searle's pattern.
Fifth, Searle closes by saying "my opponent and her allies will try and
make something out of this that it isn't ...." But based on the
evidence, Owen's allegations are more credible than Searle's denials.
Searle's own email pays a backhand tribute to the facts, by distorting
them -- about any "investigation," about available proof for Owen's
statements, about Searle's disregard for the legal limits to his power,
and about his pattern of actually violating the legal limits to his power.
Of course Searle's opponent is trying to "make something out of this" --
and Searle doesn't even seem to realize that his evasions are helping
The full text of the email purportedly signed by Searle:
"Yes, Scott Dalrymple was head of Highways during the project on
Ocotillo that is being referenced. He left the County before the
asphalt began to unravel and was not part of the repair effort. This
was one of the first issues Mike Ortega had to deal with after becoming
County Administrator in July of 2007. It was apparent that Highways did
not oversee the project correctly and that there were several areas that
needed improvement to prevent this from happening again. Mike Ortega
did have the County's internal auditor investigate the project and found
no illegal activities but did make several recommendations to help
manage projects in the future.
"As there was a obvious break down in communication on this project
between Highways Management and the crews doing the work, and
considering the total cost of this mismanagement, I felt it was very
necessary to hold the personnel responsible for managing this project
accountable. Allon Owen was very upset that he was included in this and
made some very angry and unsubstantiated claims. As you well know, no
individual Supervisor has the ability to run any department or make the
decisions that Allon suggested that I did. That is also why he could
not give Mike Ortega any proof of these wild claims. The facts of this
road fiasco are this:
"1. The road base was built for a chip seal surface by county crews.
"2. Scott Dalrymple made the decision to go from chip seal to
asphalt late in the project because he had identified some additional
funding and felt it would be a better surface considering the possible
traffic. Apparently no change to the base was asked for. As the
Department head he had this authority. I was aware of this change and
did bring it to the attention of the County Administrator Jody Klein.
"3. The contractor hired by Highways to lay the asphalt was
acquired through a job order contract through the Mohave Educational
Services and was not properly investigated.
"4. When the County crew working the project notified Highways
Management that the asphalt contractor did not have the proper
equipment, Highways Management allowed the work to continue.
"5. An independent analysis of the paving done after it began to
unravel indicated that the main reason for the failure was due to
improper asphalt temperatures at application and poor compaction of the
"6. Although the base was not the reason for the pavement
failure, because County crews did not prepare it for asphalt, it limited
the County's legal ability to hold the asphalt contractor 100% liable.
"In the end, Highways Management personnel, including Mr. Owen, were
held responsible for this failure and corrective actions have been taken
to prevent something like this from happening again. Although my
opponent and her allies will try and make something out of this that it
isn't, this is actually an example of my standing strong to hold County
Departments responsible for their actions."
October 28 update:
An email from County
Administrator Mike Ortega is circulating. Its full text is
attached below this update. It mentions attachments; they are
posted on the net, in full,
so that you can read them for yourself and draw your own conclusions.
Nowhere do Ortega's
email or its attachments say that any investigator ever talked
with Owen and took him up on his offer to name 8 employees and say what
they would testify to. Owen says nobody ever asked him.
What kind of investigation was this? Owen says he still
wants a real investigation, and is waiting to be asked the questions
that haven't been asked.
Ortega's email and its attachments talk about lots of things, but
never about what Owen's witnesses might say, or about Owen's charges of
illegal activity on the part of Searle. Ortega notes that the
investigation made "no findings of illegal or inappropriate behavior,"
but how could the investigator make any findings about those matters
without asking about them?
Everything that Searle and the county have said so far leads to one conclusion: a whitewash.
full text of the email from Ortega (and don't forget the attachments it
mentions are on the net, via the links given above.) The email
was sent to Sharon Thomas:
Thomas, it has come to my attention that you have a question regarding
an investigation I had performed on the Ocotillo Road project. It
is my understanding someone was to contact me about this investigation,
yet to date no one has done so. As a result, I have taken the
liberty of responding to your question and providing you a copy of the
results of the review by our internal auditor.
"As you know, there were some serious allegations made by a county
employee against a member of the Board of Supervisors. In
addition there were other allegations of the County breaking rules or
policies. I directed our internal auditor to look into these
issues and report back to me. The auditor was given specific
direction to get to the bottom of what really happened on the Ocotillo
Road project. The info provided to me is attached to this e-mail
for your convenience. As you can see from the report and
supporting documentation, there were many issues related to this
project. Although we certainly could have approached this project
differently, there were no findings of illegal or inappropriate
behavior. And certainly nothing that would lead one to believe
that there was illegal activity by any member of the Board of
Supervisors. Please note that the staff has implemented the
recommended safeguards to keep this type of problem from occurring in
"As a result of the internal auditor review and my
own personal interviews with some employees involved in this project, I
am satisfied that although there were problems with our internal
controls there was no illegal or inappropriate behavior that
occurred. In addition, as you may know, we have a new Director of
Highways and Flood Control that has been given direction by me to
insure strict compliance to all policies and procedures so we do not
find ourselves in a situation like this in the future.
"I take these issues and allegations very seriously
and dealt with them as I saw appropriate. It is unfortunate that
this occurred, but it did point to internal controls that we needed to
"I trust this answers your question, but if not, I
would be happy to meet with you in person to discuss this in more
detail. I can be reached at (520) 432-9200. Thanks…"
STABBING SUNSITES CITIZENS IN THE BACK
with links to minutes of a BOS meeting added on November 3
Chairman Richard Searle followed some tricky legal procedures at the
county supervisors meeting on March 19, 2007.
The meeting had one subject, the application of developer Barclays
North, identified locally as Shadow Mountain, to build 800 "housing
units" in Sunsites. The Planning & Zoning Commission had voted No 4-3.
rule," contained in Arizona Revised Statute 11-829.D, says that when
there is a request for a zoning change, "if twenty per cent of the
owners of property by area and number within the zoning area file a
protest to the proposed change, the change shall not be made except by
a three-fourths vote of all members of the board. . . ." To make
that a little clearer: If the owners of 20% of the parcels, which
also cover 20% of the area within 300', protest, then a "supermajority"
of 75% is required to pass a rezoning.
At the P&Z Commission meeting a month or so
before the Supervisors meeting, the 75% rule meant that 7 people -- 75%
of 9, rounded up -- would have had to approve the project, for it to
pass. Only 3 commissioners voted for it, of course.
At the Supervisors meeting, with 75% of 3 people
being 2.25, which, rounded up, is 3 -- all three supervisors would have
had to vote for the project in order for it to pass -- if a
supermajority was required.
Many people -- including Laura and Thom McGaffey, Melissa Turner, and Charles Tidd -- worked diligently to
collect protests against the project. At 5:40 p.m. on the Saturday before the meeting, Searle
told Tidd that protests must be delivered to the county by noon on
Monday, five hours before the meeting. Searle's reason was that county
employees needed time to do the calculations to see if the 20% rule
applied. Before noon, Tidd delivered a batch of protests, enough to satisfy
the 20% rule, and Supervisor Newman
said that when he left the county office building about three hours before the meeting, he was
told that the 20% rule applied.
However, deputy county attorney Britt "P.S." Hanson injected himself
into the process, apparently just after Newman left the office, and told
his fellow employee attorney Tracy Barrett that people could file
protests all the way through the meeting, until the supervisors voted.
Apparently by implication, people would also allowed to reverse their
position and withdraw their protests. At the meeting, Barrett stuck to
what "P.S." Hanson had told him.
If the people collecting protests had been told this earlier, they wouldn't have stopped their efforts
before noon. The developer was told, and didn't stop its efforts. Just
before the meeting began, one large landowner withdrew his protest, and
the size of his property made it obvious, without any calculation, that
the 20% rule as to area was no longer satisfied.
At the beginning of the meeting, Searle reversed the time deadline that he had told Tidd,
allowed the protest to be withdrawn, and announced that the 20% rule did
not apply. Now the development could not be stopped by a No vote from
just one supervisor.
Searle said he did not have legal authority to require protests to be
handed in by noon. If it took one of the county attorneys to tell this
to Searle, then Searle was obviously paying no attention to the limits
to his power until he exceeded them.
Searle added that he didn't actually say "deadline."
During the hearing, a Planning & Zoning employee, Britt Dveris, said he
knew about Searle's setting a cutoff time of noon, but that he, Dveris,
had earlier told people otherwise, and that he did not want to have to
change what he said, so he followed his own policy though it
contradicted the instructions from a county supervisor. Dveris did not
say whether he had been influenced by anyone else in disobeying
supervisor Searle's instructions.
Also, deputy county attorney Barrett said he was just following the
decision that "P.S." Hanson had made. Barrett did note that the
governing statute did not allow a deadline. Actually, the statute
neither allows nor forbids a deadline; ordinarily, when a statute does
not speak to procedure, public servants are allowed to set their own
procedure, as long as it is reasonable. On the face of things, Searle's
giving county employees time to verify protests, and calculate
percentages, was reasonable. Barrett's noting only what the statute did
not allow, without noting what the statute did not forbid, could be
viewed as the tiniest bit disingenuous.
Whatever the rights of the situation were, Searle stuck to his ruling;
that is, he backstabbed the people who had gathered enough protests to
satisfy the 20% rule.
the rights of the situation were, it hardly matters now, because Newman
vote Yes. The basic principle is "no harm, no foul." No
harm was done to Newman, because he voted Yes. Harm was done to
everyone to worked to gather protests, but this harm was done by
Not one of the supervisors looked good at the meeting. And no
transitory political benefit is worth setting that kind of precedent: a
person who stabs me in the back this time, can stab you in the back next
Here are links to all 7 pages of minutes of the 3/19/07 meeting:
BEING A SOCK PUPPET IN THE COUNTY'S WATER FOLLIES
For years, county supervisor Pat Call was using a phony water number,
an estimate that a person out in the country used 312 gallons of water
That figure was way too high, but it served big real estate developers
well: it let them claim that their McMansion, or "pod person,"
house tracts, where a person might use 200 gallons per day, still used
less water than country people. If the true figures for country
water usage were known, then people would see that a person living in a
Sierra Vista style house tract uses a lot more water than a person
living in the country.
The real figure for a person in the country is in the area of 50 to 100
gallons per person per day. That's about 1/2 to 1/3 of a typical
house tract. But it doesn't suit the interests of big house tract
builders to say so. So it didn't suit the interests of their pal
and beneficiary Pat Call to say so either.
But citizens were so concerned over water shortages that something had
to be said. Hence Call's touting of the phony "312" figure, and
also touting a water study that would take 2 or 3 or more years before
bringing in any numbers.
So back in 2006, a citizen emailed various people, including supervisor Searle, some comments about the long study, including:
"I am very concerned about the water well study....
"Did the citizens of the county ask for the water study?
" ... I personally would much rather see houses on 4
ac in a wildcat subdivision than see wall to wall subdivisions with
homes on lots less than 1 ac. or worse homes so close you can reach out
and touch your neighbor from window to window....
"In May the board discussed a survey on wells and
supervisors agreed to spend $100,000 on the study, which could actually
cost up to $160,000....
" ... how can you justify the study. We constantly
hear we do not have enough deputies, or dog catches or planning and
zoning inspectors. So how can we justify a survey. Buy us a
"The county can not take care of the regulatory
business that it has now, so why in heavens name do you feel the need
to regulate more?"
Searle answered the same day. He defended the study, on the basis
that "the willingness of the Board to allocate up to $100,000 for this
study, which could very easily be spent on other important and needed
county services, shows how serious the County is about protecting our
water resources and trying to make good growth decisions...."
But when Searle wrote that, the facts about country water usage were
already known. The only reason to set a years-long survey,
instead of using the accurate figure, was to delay any action on water;
and the only reason to delay any necessary action, was to let house
tract developers -- supervisor Call's big backers -- make a few more
years of profit by building wasteful housing tracts. Searle's
statement was utter and transparent nonsense.
Once again, Searle was Call's puppet.
USING PARTY POLITICS TO SILENCE ANOTHER SUPERVISOR
Cochise County has three supervisors, who represent three separate
districts. One district is centered around Sierra Vista, the other
district is generally the northwest part of the county, and District Two
is generally the southeast part of the county, including the Sulphur
At a Board meeting on April 26, 2005, Call and Searle voted for a new
rule: no item can be discussed by the Board at a work session, unless at
least two supervisors agree, in a separate meeting beforehand. This rule
is contained in Resolution 05-20.
Under 05-20, the concerns of Newman's district need never be considered.
Call and Searle may agree to hear the concerns of Newman's constituents,
but that is just a matter of grace -- voters in Newman's district have
no right to be heard. That was the intent of Call and Searle when they passed the rule.
Here, from the minutes of the April 26 meeting, is how the debate went:
"the Board of Supervisors convened the Special Meeting on the posted
issues. Discussion was held on the issue of work sessions and the
requirements that requests be placed on the agenda and voted upon to set
a work session. Supervisor Searle explained that placing the request for
work sessions on the formal agenda was a more efficient way to operate
for the entire board. He stressed that any decision regarding work
sessions will take place in a public forum, will be properly noticed and
the world will know what the decision of the collective board was
regarding any request. If there is a disagreement and a request for a
work session was voted down by the other two supervisors, it will be
reflected in the minutes. This was not designed against a single
supervisor, and in most instances, work sessions would occur.
"Vice Chairman Newman restated his position that his views will not
be heard, that he represents almost 40,000 people in his district, and
that he has a First Amendment right to be heard. Vice Chairman Newman
reiterated his position that the change was an attempt by the majority
party to silence him. He stated that he has no other way to communicate
with the other two board members as he is forbidden to do so under the
Open Meeting Law. Vice Chairman Newman read an email from Anthony Chin,
Esquire, regarding rights of an elected official dated Monday, April 25,
"Supervisor Searle stated that there is no justification to rehash
the same issues if a decision has been made unless there is a valid
reason for doing do so such as new information having come to light.
Supervisor Searle indicated that this new procedure should be given a
chance. He mentioned that he had to drive seventy miles into Bisbee for
some work sessions, and he ought to know what they are about and what
was to be accomplished before he committed to that time. Vice Chairman
Newman expressed that he did not oppose the requirement for having to
write out what was requested, but did not believe the others had the
right to refuse a work session. Supervisor Searle stated that if it did
not work, it could be changed easily. The issue of tasers was used as an
example. Mr. Klein related that a work session was held on Tasers and
then the Board took specific action in the form of a resolution.
Subsequent to that, two additional work sessions were requested and
held, since any supervisor, under the present system, can call for and
have a work session, to relate articles concerning falling Taser stock
and deaths related to Tasers in an Arizona Republic article. No agenda
or purpose of the meeting was identified.
"Chairman Call also expressed that he had every confidence that the
new procedure would work and would like to give it a try. He indicated
that it was a productive way to go and does not preclude anyone from
expressing their opinion. The discussion regarding this proposal took
place three weeks ago and he still thought it is a good idea.
"Vice Chairman Newman asked for a couple of days to fully understand
all the legal ramifications to this action and wanted time to seek his
own legal advice.
"Vice Chairman Newman made a motion to adopt Resolution 05-20, which
was seconded by Supervisor Searle. Vice Chairman Newman made an opposing
motion asking to continue the action so that he could pursue the legal
ramifications of this procedure and get advice on his constitutional
rights. Clarification was obtained that he wanted this item tabled until
next Tuesday (May 3, 2005). Supervisor Searle seconded this motion as
well. Supervisor Searle indicated that he would support the original
motion, saw no need to wait, but that if Vice Chairman Newman came up
with information that contradicted the advice given by the Chief Deputy
County Attorney that the process was legal, then he would be the first
to reconsider the action and give Vice Chairman Newman an opportunity to
present that information. The motion to continue the action, was voted
upon, and failed by a 2-1 vote, with Vice Chairman Newman voting "yes"
and the other two supervisors voting "no."
"A vote was then taken on the original motion to adopt Resolution
No. 05-20, and it passed by a 2-1 vote, with Chairman Call and Searle
voting "yes" and Vice Chairman Newman voting 'no.'"
Later in the meeting, the issue was revisited:
"Vice Chairman Newman then asked Chief Deputy County Attorney Irwin
to provide a written legal opinion on two issues: "1) Can the Board set
up a procedure whereby the collective Board can vote upon whether or not
to hold a work session? Does this new procedure for requesting work
sessions unconstitutionally infringe on any elected board member's first
amendment right to be heard and be a voice for the constituents that he
represents? Does the adopted work session procedure unlawfully restrict
the ability of an elected official board member to influence the actions
performed by the governing body as a whole? ...
"Chief Deputy Attorney Irwin mentioned that his legal opinion would
not change and that he would be happy to provide it if requested by the
collective Board. He noted that any elected official can request the
Attorney General (AG) to review this legal opinion. However, the AG is
not legally mandated to respond to a request from the County or any of
"Supervisor Searle made a motion to direct the County Attorney to
provide the Board members with a written legal opinion regarding the
procedure to request work sessions and whether or not it affect the
right of a supervisor to be heard . . . . The motion was unanimous."
In short, Call and Searle
voted to violate the Fourteenth Amendment and disenfranchise every
voter who does not live in their districts.
That's shortsighted -- if Searle can do it to Newman, the next
Board can do it to Searle -- if he somehow got re-elected despite his record. Searle, who talks a good game about serving the public, used vindictive party-line politics when he wanted.
after the rule was passed, Newman complained more
than Searle and Call liked, so they changed the rule, to prohibit him
from complaining about it for six months. A few months later, they
extended the gag to a full year.
has argued that because Newman is not making waves, there is no
problem. But Searle can't, after gagging Newman, argue that
Newman is silent so must have no problems with the rule. Searle's argument is sleazier than Searle likes to appear.
When Newman tried to get
the rule repealed, Searle and Call hung together, and Searle emphasized how important it was for the
chairman to have "leadership" qualities. But elsewhere, Searle
has said the chairman doesn't really have any more power than any
other supervisor. Searle is talking out of different sides of his mouth, depending upon what position benefits him most.
Searle and Call are violating the 1st Amendment as to free speech, and
the 14th Amendment as to "one person one vote." Searle and Call seem
happy with this. I expect that one of them will be very unhappy if the
other two supervisors link up and treat him the way Newman has been treated.
But all these arguments have had no apparent effect on Call or Searle. Searle doesn't respond to what doesn't benefit him.
IGNORING THE LESSON OF THE "SMITH RANCH" HOUSING PROJECT
In 2005, the Cochise County
Supervisors approved, 3-0, a request by Diamond Ventures of Tucson to
rezone "Smith Ranch," north of Benson, to allow a housing tract that
would have squeezed about 1/10 of the county's population onto 1/4000
of the county's area.
As plans for squeezing 13,000
people into 1.5 square miles go, Smith Ranch was beautiful. If
ever a plan was going to appeal to Cochise County, it was Smith Ranch.
But Cochise County hated
it. "Voters For Rural Values" led the charge to overturn the
Supervisors' vote at the next election. Voters For Rural
Values spent about $17,000. Diamond Ventures spent about 25 times
as much -- between $400,000 and $500,000.
Early in the campaign, Supervisor
Searle said he would stay neutral. Then he changed. He
wrote a letter that was used in a Diamond Ventures full-page ad just
before the election. Many voters felt betrayed, and didn't trust
Searle any more. Some of them wrote to him.
Searle answered one such
letter: "My letter to the editor was not a 'Yes' ad, but a
response to [an] editorial .... My letter was not intended to
support or oppose Prop 400 but to defend the legal process ....
[A]s it was a public document I did not think it was inappropriate to
deny its use by those requesting permission to use it.... When
the approval process was questioned and my statements were taken out of
context in the editorial, I felt it was important to clarify both
issues.... I have learned a lot in the last 18 months and am
sorry that you have taken offense to my letter."
When Julia Robinson, of Voters For
Rural Values, saw Searle's answer, she commented "the usual luke-warm
response from Searle.... It's clear we cannot trust him and that
he has failed to show an understanding of what representation of his
Looking back now from 2008, it seems
that Searle gives that answer -- "I'm learning, I've learned so much
since getting this job" -- every time he fails a major challenge (like
the other ones on this page). Always learning, but he never
Back to 2006. Came the
election. Cochise County citizens beat outside money.
Diamond Ventures got about 11,000 votes, at about $40 per vote.
Voters For Rural Values got about 22,000 votes, at about 77 cents per
vote. Diamond Ventures spent 50 times as much per vote, and still
lost in every one of Cochise County's 64 precincts -- every last one.
In one of the greatest popular
victories in Cochise County history, the people overwhelmingly rejected
a well-designed master-planned community. Local politicians
didn't seem to really recognize what had happened.
For instance, Searle, who let
Diamond Ventures use his letter at the end of the campaign, said he
thought the massive defeat "gives a feel across the county on how
people feel about growth issues and that's something we've needed," and
that if Diamond Ventures wanted "to do anything with that property,
they are going to have come up with an entirely new master plan."
So after a 22,000 to 11,000 defeat,
a defeat in every precinct in the county, a defeat despite last-minute
surprises including the use of Searle's own letter, Searle still
didn't get it. The public had rejected the whole concept of
a master-planned community. Searle thought they just didn't like
this particular plan. "Always learning, but he never learns."
And since then, Searle has continued
to push master-planned communities, as if Cochise County citizens would
really flock to planned communities, if the concept were fine-tuned a
little more, just a little bit more, a teeny-weeny bit.
Searle supported a boondoggle called "Envisioning 2020" (see http://littlebigdog.net/countyhorrors.htm
) which surveyed Cochise County citizens. The survey results have
much too big a margin of error, but Searle appears to believe them, so
he must believe that the last thing Cochise County citizens want --
literally, the lowest priority on their list -- is planned
housing. But Searle keeps pandering to the centralized planners.
Recently, a college class presented
their ideas on a planned community to the Supervisors. This group
of young scholars presented a concept in which people literally lived
in "pods." Searle appeared to treat this idea with respect --
which is better than he treated Voters For Rural Values two years ago.
At one of the candidates' forums
before the recent primaries, Searle was asked if he would change any of
his decisions. His answer was, incredibly, "No." That's
Searle. "Always learning, but he never learns." The county
needs better from a supervisor.
HIDING BEHIND "ADVICE OF COUNSEL"
Bring up any of the issues on this page to Searle. Argue the
facts and law. Eventually, Searle will retreat to "it's a matter
of opinion." And it doesn't matter if you're right about the law,
Searle will retreat to "The county attorney's office says ...."
to the law, the "advice of counsel" argument means that as long as a
politician can get a deputy county attorney to give advice that
the politician wants to hear, the politician is immune from personal
liability for what he does.
The problem is, the "old
boys network" still runs Cochise County. They tell the rest of us
that "progress is inevitable," but they do the best they can to keep
progress from affecting politics. They run on the principle, "go
along to get along." I actually had a deputy county attorney once
spill the beans: his aim is to give advice that lets local pols
do what they want. The law comes second.
So Searle finds it easy to
get "legal advice" that lets him act however he feels, without
regard to the facts and law. Maybe he's not even aware that this
is his pattern. In any case, Searle doesn't give any sign of
EMPOWERING SHELDON, DUMPING A MUDSLIDE ONTO WHETSTONE RESIDENTS
In 2005, Loren Sheldon's sand and gravel operation in Whetstone asked
for rezoning to legitimize auto impounding and dismantling operations
on the same lot. The impounding and dismantling operations had
been operating without a permit for years.
The neighborhood is mostly rural residential. Many neighbors
objected to the rezoning, both because of the look and noise of auto
impounding and dismantling, and because Sheldon had a history of
violating zoning regulations.
The Planning & Zoning Commission approved Sheldon's application
8-1. Then the application went to the Board Of Supervisors.
Supervisor Searle said he had made an unannounced visit to Sheldon's
operation, and that the operation was an eyesore, but that he did not
see any leaks from the cars being dismantled, nor any hazardous
materials on the ground.
On the understanding that any other use except auto dismantling and
impounding could lead to revocation of the permit, the Supervisors
approved the rezoning 2-1. Searle was the swing vote.
About a year later, Sheldon's lot stored dirt contaminated with 9000
gallons of oil from a truck accident. Storing contaminated dirt
was not allowed by Sheldon's rezoning.
Then the rain came. On August 2, 2006, the Sierra Vista Herald
reported that gasoline-soaked dirt from Sheldon's operation flooded
onto neighboring properties, causing considerable damage and a stink so
bad that one business, RV City, had to shut down for four days.
Supervisor Searle made a craven statement: "as far as I'm
concerned, this never should have happened," but "But we're dealing
with assumptions right now. We need more facts and information."
Nothing happened until citizens made a huge fuss. Searle dodged
any responsibility for allowing such operations into the neighborhood
over the neighbors' opposition, for allowing violations to continue, or
for cracking down once the public refused to be silenced.
Some constituent service.
THE FARIA DAIRY STINK
told a local dairy owner to go ahead and build a feedlot without a
permit -- or else to build a grazing lot -- or else something else --
and Searle confused the dairy owner -- or the dairy owner confused
Searle -- or they both were confused. The dairy owner went ahead
and built the feedlot claiming to rely on what Searle said. but
on May 9, 2007, the P&Z Commission denied a permit for the
feedlot. The case went to court, and is still in court as of
October 2008. The Faria family and the taxpayers are spending a
lot of money because Searle didn't "get" that he personally can't
give permission to anyone to ignore county regulations. And the
neighbors have to put up with the smell and flies.
Sometime around early 2005, Dale Bennett let Raytheon, without asking
for a change of zoning or a special use permit, use a few acres of his
property, about 10 miles north of Benson.
Raytheon used the property for tests involving an "air cannon."
The air cannon shot small objects, at very high speeds, into
barriers. The testing did not involve any chemicals, explosives,
or materials that were inherently hazardous.
The tests generated traffic, noises, and light. Questions
arose. Raytheon held meetings with neighbors. County
Supervisor Searle attended the February 9 meeting, and said that for
Raytheon to keep testing, the land would have to be rezoned.
Raytheon then sought to modify the county zoning regulations to allow
"research and testing laboratories." The Planning & Zoning
Commission approved Raytheon's request, 7-1.
Before the request got to the Supervisors, Searle emailed one citizen
that "I do support this proposed change." At the Supervisors
meeting on July 11, 2006, Searle said he had been involved in this
issue from the time of the first complaints.
Actually, Searle might have been involved earlier. Bennett said
that he had been advised by Searle that no permit was required and he
could go right ahead with this project.
Came the vote, Raytheon's request for rezoning lost, 2-1. Searle's was the only vote for it.
Bennett's claim that Searle told him no permit was required, and that
Bennett could go right ahead with his project, is reminiscent of
Searle's recklessness in the Faria Dairy and Shadow Mountain fiascoes.
LOVING THOSE BUILDING CODES
Cochise County should dump the rural building code.
Searle keeps suppressing the evidence proving that.
get the county supervisors to pass the code, the Planning Department
made three promises, and a team of citizens and county personnel was
supposed to evaluate how well the promises were kept. The
evaluation hasn't happened, and the promises haven't been kept.
But Searle keeps going along with this useless, expensive,
despised program -- even making sure that the phony evaluations keep dodging the point.
The promises were that the code would save lives, cut insurance rates,
and pay for itself within three years.
THERE'S NEVER BEEN A REAL EVALUATION
The county supervisors passed the code on December 14, 2004.
The code was implemented in three "phases" a year apart, covering the
area around Sierra Vista in 2005, the middle part of the county in
2006, and the east side of the county in 2007.
At the December 2004 meeting, supervisor Newman wanted an evaluation in about a year, by a team of
citizens and county personnel including "the Supervisors, Planning
& Zoning staff, County Attorney staff, experts in the field of
building codes, builders and developers, and interested members of the
Newman's motion got no second, but according to the minutes, supervisor Call "agreed with the merit of a review ...
but did not feel that the Resolution needed to be amended....
During discussion Mr. Vlahovich stated that although he hoped six
months would be sufficient time for his department to collect data for
review, he would be more comfortable with nine months before the review
and evaluation. Call then changed the time frame to nine
months," and the supervisors passed the code.
In 2006, just three days before the first evaluation was due, Vlahovich
claimed -- despite his comments during the discussion about the
evaluation -- that "he did not realize the motion required an
evaluation prior to the implementation of the second phase." The
supervisors delayed Phase 2 until a quickie report could be prepared.
But Call and Vlahovich, are
tight, and Searle is under Call's thumb, so Searle went along with this nonsense.
The 2006 quickie report was prepared by Ron Durgin, who ran the code
program and whose salary came from fees collected by the program.
He said nothing about the promises of safer homes, saved lives, or
cheaper insurance. He only said the program was collecting enough
money to pay the costs of collecting the money. That report would
have let the supervisors laugh the program out of existence right
then. But Call wants to impose a Sierra Vista style code on the
rural parts of the county, and Searle didn't make any waves.
The supervisors set an evaluation for a
year later. The deadline was July 6, 2007, but the supervisors
let it slip to August 14. At that meeting, Newman objected to
continuing the code program without having the evaluation that had been
discussed when the code was passed, but Searle moved on to hearing the report, without discussing the issue. Searle was Call's lap dog.
This report was another in-house report, this time by then-head of the
Department Judy Anderson. Anderson discussed the amount of fees
collected by the program, and the types of "tickets" issued. She
found that the program had been and was still running at a loss,
despite what Durgin said in 2006. Searle didn't ask anybody to explain this contradiction.
The supervisors again set a real review for a year, and again let
it slip, until October 6, 2008. And again, all that happened was in-house report, again prepared by Mr. Durgin. Searle
didn't question why Mr. Durgin, who had prepared the 2006 report that
was falsified in 2007, and whose salary comes from what the code
collects, should be allowed to prepare another report.
Durgin's 2008 report is longer than the first two, but unlike a real
evaluation, still does not test the promises about saving lives,
cutting insurance costs, and paying its own way. Searle didn't say a word about these glaring defects.
The in-house reports are discussed below. The section headers, in
capitals, summarize the reports, topic by topic.
For your own copy of
call the Planning Department at 432 9240.
THERE'S NO EVIDENCE THAT THE CODE HAS SAVED LIVES
The Department has never even tried to show that the code has saved any
lives. The closest approach to that came in the 2007 and 2008
evaluations, which list "safety violations" found -- many of them
trivial -- but offers no evidence that any of the violations would have
caused actual problems, much less cost lives.
The county could have tested this promise by comparing the rate of
accidents and injuries in rural areas covered by the code, with the
rate in rural areas outside code coverage. Or the county could
compare the rates of medical and fire emergency runs before and after
the code. The county hasn't even tried.
Meanwhile, what was passed as a "Building Code," the county now calls a
"Building Safety Code," as if the name conferred the game.
The combination of failing to test the promise of safety, and
informally adding "safety" to the code's name despite the lack of
testing, is evidence of the intent to keep the code in effect even if
it doesn't deliver the promised benefits, just because government
employees perceive it as a "good idea" in theory.
But Searle didn't react to the complete ignoring of this promise during the "evaluations."
THE CODE HASN'T CUT INSURANCE RATES
Despite the promises in 2004 that adopting the code would lead to lower
insurance rates in the county, the county had, as of 2007, not even
tried to use the code to get lower rates for property owners.
This was stated in then-head Anderson's 2007 quickie report. She
did not give any reason for this delay.
Durgin's 2008 report says that since the entire county has been
under the code for at least one year, "we have now begun the process to
establish our initial ISO Building Code Effectiveness
Classification." That is, the county currently has no
rating. But in 2004, Durgin told the supervisors that "Cochise
County currently has the worst insurance rating given by the ISO." But having the worst rating is different from having no rating. Searle didn't react to Durgin's 2008 contradiction of his 2004 statement.
So on October 9, I
asked Mr. Durgin to explain his inconsistent comments. His answer
came the same day. Part of his answer implied that the secretary
garbled what he said. But the minutes are presumed to be
accurate, the secretary knew her job, and the minutes were approved by
the Board Of
Supervisors not long after they were written; so it's hard for Mr.
Durgin to dispute their accuracy based on his recollections almost four
years later. Durgin's answer makes his challenge much harder, by
adding "I would feel that a zero percent reduction would be a most
unfavorable outcome of this program under either of those
classifications ..... or maybe even the worst rating." That
sentence, confused and hard to understand as it is, doesn't show that
the secretary heard Durgin wrong in 2004. I believe it's most
reasonable to follow the minutes as written, and conclude that Durgin
did tell the supervisors that Cochise County had "the worst rating."
There is no need to ascribe conscious malice to Mr. Durgin, only his
great desire to see the code program put in place. But Searle is
supposed to be making decisions based on reality, not the desire
to go along with supervisor Call's machine. Where's Searle?
THE CODE HAS NEVER PAID FOR ITSELF
Durgin's quickie report in 2006 said that the program was paying
its own way. In 2007, however, p. 5 of Anderson's report showed that in
2006/7, the fees & fines collected by the code program were about
$252,000 less than the program's expenses ($636,000 in revenues, but $888,000 in costs.)
The program's deficit has continued, although that's hard to tell from
Durgin's 2008 report, which doesn't present the data in the same
easy-to-read format as Anderson's 2007 report.
Searle may be responsible, at least in part, for Durgin's 2008 report
not plainly revealing the deficit. On July 9, 2008, Vlahovich
wrote an email to Durgin and Buchan about the upcoming review of the
code program. Vlahovich said "We'll need to sit down with Richard
to determine what level of detail he wants here." Evidently no
more emails were sent about that meeting, because a request for
production of public documents didn't elicit any such emails.
If such a meeting was held, then either
Searle agreed to conceal the details about the deficit, or
Searle had the wool pulled over his eyes by county employees, and let
the "review" go forward in a way that concealed the details of the
In Durgin's report, the income for 2007/8 is in p. 9's "Planning
Department Revenue Activity" table. It was $453,000. That's
about $160,000 less than the income for 2006/7. But the expenses for 2007/8, in p. 10's "Planning Department - General
Expenses" table, are organized in a way that obstructs any direct
comparison with Anderson's report for 2006/7.
However, there's a workaround for the report's obfuscation, because
it's clear from p. 10's
"General Expenses" table that expenses didn't change much between
2006/7 and 2007/8. The table shows that for the Department,
expenses were up about $54,000, out of a $1.49 million total.
Expenses for the Divisions didn't change much either:
about $13,000 out of a $600,000 total, Zoning up $35,000 out of
$417,000, and Building up $5000 out of $475,000. Finally,
expenses didn't change much in any of the three categories
within each Division: for Planning, the categories are up $1000
out of $433,000, down $2000 out of $21,000, and up $17,000 out of
$136,000; for Zoning, up $36,000 out of $407,000, down $1000 out of
$2000, and down $400 out of $8000; and for Building, up $11,000 out of
$445,000, up $400 out of $3000, and down $6000 out of $27,000.
So in every category, and every scale of
operation, expenses didn't change much between 2006/7 and 2007/8.
Since expenses are about the same, $160,000 less income implies
$160,000 more deficit. Since last year's deficit was $252,000,
this year's deficit is about $412,000.
When Anderson's successor saw those figures, she
asked "If we are truly running this
high a deficit, should we talk about raising valuations?" (email,
7/16/08. The "valuations" are Department estimates of the cost of
construction. They are used for setting some fees, are set rather
arbitrarily, and evidently can be raised arbitrarily too.)
other words, three years into a code which promised to pay for itself
-- a huge deficit -- and the response is to raise the fees instead of
dumping the code.
And the running deficit is about $944,000: the 2004/5 deficit was
$216,000; in 2005/6, $64,000; in 2006/7, $252,000; and in 2007/8,
$412,000. At any time, the running total deficit may reach
That's a far cry from paying for itself, as Mr. Vlahovich promised in 2004.
What Vlahovich said in 2004 was "The
start up cost for the entire program, including Mr. Durgin's salary
would be $540,000 and the ongoing cost would come to $400,000 per
year. The plan assumed a 32% increase in permit fees, a 2% annual
growth rate, and a 10% increase in permit activity. Assuming
these figures, the plan would pay for itself in about 3 years and only
be subsidized by the General Fund for the start-up period."
Vlahovich's predictions of increased growth and permit activity are
equally bad. Building activity is undergoing a major and steady
For manufactured homes, there were 401 permits issued in 2004/5, 380 in
2005/6, 366 in 2006/7, and 232 in 2007/8. Mr. Vlahovich predicted
534 permits in 2007/8, over double the real number.
For site-built homes, there were 565 permits issued in 2004/5, 481 in
2005/6, 356 in 2006/7, and 184 in 2007/8. Mr. Vlahovich predicted
752 permits in 2007/8, over four times the real number.
Other types of permits (additions, remodeling, accessory structures,
etc.) have increased, in part because people are remodeling because
they can't afford to build new. Permits for additions and
remodeling show a steady increase: 292 in 2004/5, 429 in 2005/6,
462 in 2006/7, and 573 in 2007/8. But even with these increases,
the total number of permits was 2094 in 2004/5, 2189 in 2005/6 (the
peak year), 2083 in 2006/7, and 1779 in 2007/8. The trend is
The grotesque errors in Mr. Vlahovich's predictions cannot be
attributed to any malicious distortion on his part, merely to a rosy
worldview that things are generally good and will keep getting better,
and that the best thing to do with bad news is ignore it and wait it
out. But ignoring reality is not a good basis for predicting the
future, and this program has turned out to be a flop. But Searle doesn't seem to care.
What would it take to make Searle stand up and fight for his
constituents, who dislike the code? And they really dislike
the way the county Planning Department uses insolent inspectors to
enforce it. And they really, really dislike the way this useless,
unpopular code is eating up tax dollars.
ESPECIALLY RICHARD SEARLE
IS OVERLOOKING WHAT IT SHOULD BE OVERSEEING
It is irresponsible for the
supervisors to continue the program merely because they once heard rosy
promises about it. But where's Searle?
The supervisors have ignored all of the many indications that the program was simply not working.
From the beginning, the Supervisors have accepted botched work when the
code program was involved. Two reviewing boards mandated by law
were not created when the code was passed. Deputy county attorney Britt Hanson
blamed this (somehow) on Cochise County's not having a building code
until 2005 (SV Herald, 7/14/08), but the Department's presentation to
the Commission contradicted Hanson. The program has always been a
confused, confusing, unpopular, rebel-rousing, money-losing mess.
Supervisor Call's liking for the program is easy to understand.
His loyalties are to big developers, and those who make money from big
developments. Those people want a county building code. One
of their shining lights, Mr. Tom Heckendorn, even urged that building
codes should be identical in remote rural areas as inside Sierra
Vista. That's the bugle Call rallies to.
As to the other supervisors, Newman has been ineffective and isn't running for re-election. Searle remains under Call's influence.
Call is clearly in the pocket of big real estate developers and their
pals, sliding south from Phoenix and Tucson. Searle's
constituents have other priorities, more in line with traditional life
in Cochise County. Rural people don't expect much from Call, and
Newman is a nonentity; that's why Searle's passivity is especially
Many candidates -- District
1's Chris Campas, District 2's write-in John-Henry Piotrowski and
Republican Harvey Allen, and District 3's Sharon Thomas -- have voiced
dissatisfaction with the code. Searle is not just wrong to keep clinging to the code, he's wilfully out of touch.
As an alternative to Searle's sock-puppeting, here's a suggestion from
CCIPRA's Kelly Savage which has received favorable comments:
The implementation of the International Building
Code to all of the unincorporated areas of Cochise County was similar
to putting a full body cast on a body with a broken toe. Because
of complaints by buyers of new and used homes that affected mortgage
companies and insurance companies (prime architects of the IBC) ALL
builders in the rural areas were punished with this highly restrictive,
expensive piece of regulation.
The adoption of a county-wide building code was sold under the banner of Safety.
County residents were told buildings in
unincorporated areas constructed without the IBC were falling down or
burning up yet the county never once supplied any figures to support
The fact is that everyday house fires occur in new
buildings that underwent multiple inspections. Why? The
major cause of house fires is human error: unattended tobacco
products, unattended items on stoves and improperly maintained heating
When the IBC resolution was being considered, I
quoted statistics from the U.S. Fire Administration that stated in
rural areas the #1 cause of fires is from defective heating units, and
I suggested that the county's fire departments institute a program to
offer free inspections of chimneys, woodstoves, propane and electric
heaters to help homeowners assess the safety of their heating units and
correct defects. Many states offer this service and even provide
chimney cleaning with or without a small donation to the local fire
department. This would be proactive and provide fire safety
education to homeowners.
Yet instead of promoting a program to offer free
inspections of heating units, the county continues to respond to
The U.S. Fire Administration also stated that the
biggest problem with rural fires is the longer response time due to
unlighted roads and bad road conditions.
Instead of looking at getting all the roads with
residences on them brought up to minimum emergency vehicle requirements
and and making sure all roads are properly signed, the county dropped
roads from its roster.
Instead of directing funds to the Highway Department
to improve response time, it pumped more money into inspectors, county
vehicles and gas expenses, and staff for the Planning and Zoning
Department so it could collect more fees and fines which it then used
to hire more people.
The second premise for adoption of the heavy-handed
IBC was that homes were falling down on people. Yet no statistics
were ever provided to support this claim-- after repeated
requests. Why? There are none.
With the advent of standarized lumber sizes and
materials, the average home builder doesn't use daub and wattle to
build with. It is true there are many decrepit outbuildings in
Cochise County. These were temporary structures built to store
hay or items or to provide shelter to farm animals, not humans.
The need for them to be demolished falls under Attractive Nuisance
laws, not the building code.
Fact: the bulk of new construction in Cochise
County is by licensed contractors. To get a license, contractors
have to take a test that proves they know the building codes and agree
to follow them. Therefore, the county-wide implementation of the
IBC must have been aimed at small owner-builders.
If an inspected house has no defects, then I don't
know why I have often stood in line at hardware stores with new
homeowners buying roofing materials, plumbing supplies, etc., because
their new, inspected home had defects. Hmmn. One customer
made the comment that Arizona has the largest number of leaky roofs in
America. I don't know if this is true, but based on the brisk
sales of roofing materials in the store that day, I was tempted to
believe it. Southeastern Arizona has severe weather
conditions: high winds, heavy rains, high temperatures and even
freezing temperatures in the winter. All buildings experience
deterioration from these conditions but, interestingly, those inspected
and approved by the Arizona Fire Marshal's office (i.e. post-1976
manufactured homes) appear to deteriorate fastest. In spite of
their flimsiness, this type of housing is very popular in the rural
areas as they are "instant" homes that require very little site work.
However, any home that is not constructed properly
in this area shows its defects relatively quickly-- within the two
years required between construction and resale of an owner-built and
occupied home. On the other hand, a prime cause for structural
failures in new homes is the labor-saving practice of using pneumatic
nail drivers to secure sheathing to the studs or rafters.
Construction workers at fast-paced, assembly-line worksites are more
likely to use these. With these machines, the operators don't
know if they are actually hitting the studs, and anyone who has used
new lumber knows that boards have an annoying habit of bowing or
curving so a straight nail line doesn't always guarantee that the nail
is going into the underlying support board. Thus, some of the
newer homes are actually less safe than ones built by owner-builders
who build more slowly.
I suggested that instead of the IBC and expensive
plans review for owner-builders, the county do something proactive and
provide classes on building procedures and a provide a free photocopied
book on the basics of proper framing, foundation construction, etc., to
all owner-builders requesting a building permit. I suggested the
county spend money on educating people instead of punishing them via
fees and fines.
Instead, the county's Planning and Zoning Department
plowed ahead with implementing a program that doesn't pay for itself,
and that causes more of a tax burden on the residents-- directly
through fees/fines and indirectly by raising the cost of building a
home, which raises the valuation and the taxes. Instead of adding
friendly staff to work with owner-builders to give them the basic
safety standards involved in building a residential structure, they
added more inspectors, vehicles, & gasoline to deal with problems
after the fact.
Reactive is always more costly than pro-active.
If the true reason was a concern for Safety, then why is the county not addressing the real causes?
The crux of the matter is that all licensed
contractors are supposed to know the building codes, and are required
to follow them in order to keep their license. Therefore, it is
appropriate that their work be subject to inspections. As most of
the building in the county is by licensed contractors, the adoption of
the county-wide IBC for ALL builders merely serves to place a high
financial burden on individual owner-builders. The Planning and
Zoning Department needs to shift funds to new contractor-built home
Inspectors and to develop new in-house educational programs and away
from Inspectors who drive around just looking for minor
violations. The current resented practice is wasteful and costs
every taxpayer unneccessarily in gasoline and county vehicle
expenses. The taxpaid costs for every small violation prosecuted
in this manner are often way out of proportion to what the county
recovers. The cost in damaged county-citizen relations is
Instead of imposing a blanket building code on
owner-builders, the county needs to amend the building code regulations
pro-actively as follows:
1) Do away with mandating the IBC for
owner-builders or keep the Exemption Option and the owner/builder
Inspection Options for post-2006 homes, but provide owner/builders with
a non-threatening, non-punitive informative free program that includes
classes and a free book on safe home construction and improvement
techniques with emphasis on ones that use the least amount of new
construction materials and encourage the use of recycled
materials. Use Planning and Zoning funds more effectively by
educating, not punishing; and
2) Shift some current P&Z funds to the
Fire Departments to add a non-threatening, non-punitive informative
free program by the rural fire departments to check out heating units
and clean chimneys if needed; and
3) Shift some funds from Planning and Zoning
to the Highway Department so all roads in the county that have
inhabited houses on them are brought up to minimum standards for
emergency vehicle use.
This Three-Point Plan addresses Safety by
integrating it with three county departments for long-term results and
will truly make the county safer and lower losses and insurance rates
in the long run.
Kelly Savage, Vice Chairman, Cochise County Individual and Property Rights Association
(for CCIPRA, see http://littlebigdog.net/ccipra.htm )
GOING ALONG WITH FRAUD AT THE PLANNING DEPARTMENT
February 8, 2006, the Planning Department went before the Planning
& Zoning Commission asking for approval of some higher fees that
the Department could charge citizens. Actually, the Department
was asking the Commission to violate an Arizona law which says that
fees charged by the Department can't exceed the cost of the service
being charged for. For a set of four items, the Department said
the costs were $18.50, $84.77, $179.86, and $375.06. But the
Department wanted to charge fees bigger than that.
the Commission meeting, a citizen raised the issue. A Department
staff told the Commission that "our county attorney says that in the
case of a surcharge, it needs to be exactly equal to the price it
costs the county to provide the service." Obviously, since the
fees were more than the cost of the service, it was illegal to approve
the fees. Amazingly, the Commission approved the fees.
On April 4, 2006, the Department took its request to the Supervisors
for final approval Mysteriously, the claimed costs had gone up,
to $72.31, $145.56, $203.82, and $524.29. All the claimed costs
were now bigger than the desired fees, so the illegality had
the Department didn't tell the Supervisors that the figures had all
increased! Nor did the Department provide the eight pages of
figures it had given the Commission on February 8. Obviously,
those 8 pages would undercut what the Department was telling the
Supervisors on April 4.
April 4, 2006, a citizen pointed all this out to the
Supervisors. Only Supervisor Newman responded. He asked the
Department to explain. The Department's answer lasted three
and a half minutes, and incoherently strung together a dozen or
more subjects ranging from salaries to the Bell Curve. It was a
classic example of a liar, caught pants down, trying to explain
away the facts -- but amid the verbiage, the Department admitted
inflating its costs in order to allow the big fees it wanted.
Newman didn't notice, and Call and Searle didn't seem to
care. The Supervisors approved the fees, which are on their face illegal.
Call is beyond redemption. His political allies are big real
estate developers, and anyone who makes money from big real estate
development. Inside county government, Call has manipulated
Supervisor Searle for years. Searle keeps saying he is becoming
his own person as years go by, but somehow that never evidences
itself in any major way. Searle had the most promise of any of
the three incumbents, and it was Searle who was most likely to speak
out on this fraud by the Planning Department.
Yet Searle followed "go along to get along," and the public has paid ever since.
WHAT ISN'T ALLOWED IS FORBIDDEN --
-- COUNTY ZONING REGULATION 307
"Any use not permitted is prohibited." That's the meaning of Cochise County Zoning Regulation 307.
Here's Regulation 307 in
full: "Any use not permitted in a district, either as a permitted
use or as a special use, is specifically prohibited from a zoning
district. A use shall be permitted only if it reasonably fits
under the generic category of uses and is not otherwise excepted
have objected that such language has no place in America -- that in
America, whatever isn't prohibited is permitted, not vice versa. This issue has echoed wherever it's been raised.
Upset citizens took the question to county meetings for a while, but the county wouldn't respond. In particular, supervisor Searle stuck with the "party line" from the Planning Department.
The Department was then under the thumb of supervisor Patrick Call, and
so was Searle. It doesn't look like much has changed.
The county's last official
response -- whose merits Searle refused to evaluate -- came from Judy
Anderson when she ran the Planning Department: "Staff strongly
recommends that this language and similar language in Article 23 be
left as is. Other County Planning Directors were polled and their
Zoning Regulations contain similar language as do model ordinances put
out by the American Planning Association. The County Attorney
agrees. To delete this language opens the door to allowing new
uses that are not yet invented and would have to be allowed even if
objectionable. If a use is not listed as permitted or can not be
interpreted to reasonably fit under a generic category, due process is
nevertheless afforded because the interpretation can be appealed to the
Board of Adjustment or a Zoning Regulation amendment can be
processed. It is very rare that a use does not fit under an
existing land use category."
The five reasons in that response are quoted and discussed in order below.
1. "Other County Planning Directors were polled and their Zoning
Regulations contain similar language as do model ordinances put out by
the American Planning Association." That is the schoolchild's argument
that "everybody is doing it." It does not carry much force.
a. In any case, to learn what other the county planning directors
said, I submitted a document request to the former head of the Planning Department.
b. The response said she had contacted 14 Arizona counties asking if they had an ordinance like
our Regulation 307. Six counties answered: Apache, Coconino,
Maricopa, Mohave, Santa Cruz, and Yavapai counties. All but Apache had
language identical to ours, or nearly so. Coconino commented that
allowing whatever isn't prohibited "would be dangerous and would
probably make your ordinance voluminous as you try to list every
possible use," and Maricopa commented that allowing whatever isn't
prohibited "is really dangerous language. How many codes prohibit
Aqua-culture or Sub-atomic particle accelerators or escargot
rehabilitation centers or...or...or."
c. These five counties seem locked into regulating specific methods of
conduct or construction. However, regulations can be much shorter and
clearer if they regulate outcomes instead of methods. For instance, if
you want to prevent loud noises that bother the neighbors, you could
prohibit steel mills, machine shops, sawmills, stamping mills,
automobile repair shops, tire shops, band practice, and so on, adding
items until your list is pages long; that's how Cochise County
regulations are generally written. On the other hand, you could simply
prohibit any activity whose outcome is noise louder than a stated
volume at a stated distance. Such an "outcome" regulation is short and
understandable; it requires you to think about your real goals before
you write it; and you don't need to change it whenever a new source of
noise is invented.
d. Another benefit of "outcome" regulations is shown by the humorous
Maricopa list of aquaculture, a particle accelerator, and an escargot
rehab center. Maricopa's appears
to be under the influence of a "knee-jerk" reflex to regulate anything
that is novel, without thinking closely about whether regulation is
really necessary. That's odd, because Americans, especially
Westerners, used to be known for not restricting others' liberty
without good reason. As to the escargot rehab center in particular,
anti-noise and anti-cruelty laws already exist, so neighbors need not
fear being awakened at night by wounded snails screaming during their
e. Apache County, however, had slightly weaker language: "All other
uses other than those permitted within zones as adopted by the Board of
Supervisors shall require a Conditional Use Permit," whose issuance
depends on a use's effects, not on how the effects are produced. In
her cover letter, Judy said the Apache County system "might be adapted
to Cochise County without requiring an overall update."
2. "The County Attorney agrees." The Cochise County Attorney's
imprimatur means little, because "going along to get along" has been
known to trump the law and Constitution within that office.
3. "To delete this language opens the door to allowing new uses that
are not yet invented and would have to be allowed even if
objectionable." That comment returns us to the discussion over
"outcome" regulations versus "method" regulations. Here's another
example of why I suggest "outcome" regulations. If your goal is to
require fences strong enough not to blow over in high winds, then why
not just say how strong a wind fences must withstand? Why list every
possible material or technique for building a fence?
4. "If a use is not listed as permitted or can not be interpreted to
reasonably fit under a generic category, due process is nevertheless
afforded because the interpretation can be appealed to the Board of
Adjustment or a Zoning Regulation amendment can be processed." That's
wrong. Certainly a process exists for appealing a ruling, or amending
a regulation; but process can exist without being "due." Due process
doesn't exist when regulations are so broad that citizens can't conduct
harmless activity without government intervention that amounts to
harassment and causes long delays. Also, the "process" costs hundreds
of dollars, out of reach for many citizens.
5. "It is very rare that a use does not fit under an existing land use
category." That's a useless argument, because it cuts both ways. If a
problem land use is rare now, then it will remain rare after Regulation
307 is deleted or reversed.
The Department answer also included material on "Form-Based
Codes" provided by the Form-Based Code Institute, which wants to
"create a predictable public realm primarily by controlling physical
form, with a lesser focus on land use." Frankly, if I had to read
stuff like that every day, I'd have retired long before Judy has chosen
to. What that claptrap appears to want is neighborhoods designed by
committee. Requiring neighborhoods to meet the standards of some
esthetic sect may not be a function of government as we understand it. Moreover, the Form-Based Code Institute isn't aimed at rural areas.
The Institute says its Form-Based Codes "are drafted to achieve a
community vision based on time-tested forms of urbanism." One thing is
clear: Cochise County should not be developed according any form of
urbanism, time-tested or not.
Searle, as a county
supervisor with several years in that job, and just as a human being,
should have seen some other problems with that answer.
aren't authoritative. Anonymous "Staff" carries no weight;
"other" planners only means "some," not necessarily many; the American
Planning Association promotes more government control over property;
and the county attorney has little credibility in the county, after a
long series of bumbles, like stating that a Planning Department head
has unlimited power to set policies stating how much of any item is
necessary within a citizen's residence. Reliance on such
"authorities" is laughable. Searle went along.
And what "authorities"
want doesn't matter. Cochise County citizens are the authority on
what they themselves want. But Searle doesn't respond to them.
But Searle passively
stuck to the program laid down by the Department, under supervisor
makes a great show of appearing to be responsive to his constituents,
but honeyed words don't take the sting out of his subservience to
supervisor Call. Traveling to events, and listening at them,
don't substitute for acting on what he hears, and taking a real
stand against government intrusiveness and stupidity. That's
where Searle falls short.
BE SILENT IN MY PRESENCE, YOU MERE ... CITIZENS!
Silencing dissent, that's what Searle tried & failed to do.
At a supervisors meeting, the "Call To the Public"
-- sometimes "C2P" -- is when people can stand up and tell the
supervisors about something that is important to them, but isn't on the
agenda. A citizen gets three minutes. I've attended lots of supervisors meetings, and don't remember more than two people using the C2P at a meeting.
The C2P used to be at the
beginning of supervisors meetings. Citizens often things that the
supervisors would rather not hear -- criticism, for instance. But what officials most need to hear is often something they don't want to hear.
Supervisor Searle, after becoming Chairman of the Board Of Supervisors, moved the C2P to the end of meetings.
Until then a person could
come to a meeting knowing that the C2P would happen within 10 or
15 minutes. This made it possible for citizens on a tight
schedule to come, say their piece, and leave. The total
time was 3 or 6 minutes, for one or two people.
The delay this caused to later agenda items was
unnoticeable. For any agenda item after #1, a person
wouldn't have an idea when the item would come up, because earlier
items could take any amount of time. A loquacious supervisor like
Newman could easily take 10 minutes to say something that would fit
into 1 minute, or was unnecessary, or would reduce the meeting to a
Nowadays, however, a
person must wait a variable time, 2 to 3 hours, in order to
speak 3 minutes at a C2P. Some people just can't do that --
for instance, working mothers who have to care for their
children. You're not going to hear them use a C2P.
If shutting down public criticism at meetings was all that happened, the public's loss would have been Searle's gain.
But the public's loss caused
a loss to Searle. It caused unhappy citizens to increase
internet criticism of governmental problems and errors. Problems
became long-lasting scandals after Searle ruined the C2P.
Searle should have seen it
coming, and it's has been presented to him since his edict, but he's
not changing back, nor saying why, either. Searle will let you
bend his ear, but he won't really argue the merits, perhaps
because he has no reason that would stand up to argument. So
Searle continues to hurt himself as a byproduct of his hurting the
public. A supervisor should do better than stubbornly refusing to admit error.
THE OPEN MEETING LAW: A FARCE IN COCHISE COUNTY
This discussion first sets out the basics of the Open Meeting Law, the "OML,"
gives examples of how little it means in Cochise County.
directly to the examples, click go to examples.
BASICS OF THE OPEN MEETING LAW
Under the Open Meeting Law, the "OML,"
Arizona public bodies, including the county and city agencies, must make their meetings open to the public. [Note: Here's a link to the actual statutes: http://www.azleg.gov/ArizonaRevisedStatutes.asp ]
38-431.01. Meetings shall be open to the public
All meetings ... shall be public meetings and all
persons ... shall be permitted to attend and listen ....
All public bodies, except for subcommittees and advisory
committees, shall provide for the taking of written
minutes or a recording ..., including
executive sessions. For meetings other than executive
sessions, such minutes or recording shall include, but
not be limited to:
An accurate description of all legal actions
proposed, discussed or taken, and the names of
members who propose each motion. The minutes shall
also include the names of the persons, as given,
making statements or presenting material to the
public body and a reference to the legal action ...
which they [addressed].
Minutes of executive sessions shall include ... an accurate description of all instructions
given pursuant to section 38-431.03[(A)(4), (5) and (7)]
and such other matters as may be deemed appropriate by
the public body.
The minutes or a recording shall be open to public
inspection three working days after the meeting except as
otherwise specifically provided by this article.
All or any part of a public meeting ... may be recorded
by any person in attendance by means of a tape recorder,
camera or other means of sonic reproduction, provided
that there is no active interference with the conduct of
the meeting. [Note, you may
record a meeting even if some politico doesn't like it; the annoyance
of some stuffed shirt at being record doesn't make it "active interference" for you to record.]
A public body may make an open call to the public ... to allow individuals to address the
public body .... At the conclusion of an open call ... , individual members of the public body may respond to
criticism ... , may ask staff to review a matter or may ask that a
matter be put on a future agenda. However, ... the
public body shall not discuss or take legal action on
matters raised during an open call ... unless the
matters are properly noticed for discussion and legal
Closed Meetings, Called "Executive
38-431.03 Executive sessions
Upon a public majority vote of ... a
quorum, a public body may hold an executive session but
only for the following purposes: [Note, and not for any others!]
Discussion or consideration of employment,
assignment, appointment, promotion, demotion,
dismissal, salaries, disciplining or resignation of a
public officer, appointee or employee ....
Discussion or consideration of records exempt ...
from public inspection ...
Discussion or consultation for legal advice with ... attorneys of the public body.
Discussion or consultation with ... attorneys ...
regarding ... contracts that are the subject of
negotiations, in pending or contemplated litigation
or in settlement discussions ....
Discussions or consultations with designated
representatives of the public body ... regarding
negotiations with employee organizations ....
Discussions or consultations ... regarding
negotiations for the purchase, sale or lease of real
Minutes of and discussions made at executive sessions
shall be kept confidential except from:
Officers, appointees or employees who were the
subject of discussion or consideration pursuant to
subsection A, paragraph 1 of this section.
.... A public vote shall be taken before any legal
action binds the public body.
Except as provided in section 38-431.02, subsections I
and J, a public body shall not discuss any matter in an
executive session which is not described in the notice of
the executive session.
Exceptions I and J, noted in that last paragraph, are:
(I).... notice of executive sessions shall be required to
include only a general description of the matters to be
considered.... more than just a
recital of the statutory provisions authorizing the
executive session, but ... not ... information that
would defeat the purpose of the executive session,
compromise the legitimate privacy interests of a public
officer, appointee or employee, or compromise the
(J).... in the case of an
actual emergency a matter may be discussed and considered
and, at public meetings, decided, where the matter was
not listed on the agenda provided that a statement
setting forth the reasons necessitating such discussion,
consideration or decision is placed in the minutes of the
meeting and is publicly announced ....
Effects of the Board Of Supervisors
Violating the OML
basic effect of violating the OML is that every
action taken during a meeting is void. [Note: But see the note in red immediately below.]
All legal action transacted by any public body during a
meeting held in violation of any provision of this article is
null and void except as provided in subsection B.
[NOTE: Despite this statute, the state Attorney General recently
opinion that the only action made void is the one directly affected by
a violation of the OML. Our AG is contradicting the plain language of
the law, and depriving Arizona citizens of the protection of the law.]
A public body may ratify legal action taken in violation of
this article in accordance with the following requirements:
Ratification shall take place at a public meeting within
thirty days after discovery of the violation or after
such discovery should have been made by the exercise of
reasonable diligence. [Note: Clearly,
a citizen need not complain about a violation at the
meeting where it occurs; the statute schedules
events from the date on which a violation is discovered, not the date of a meeting.]
The notice for the meeting shall include a description of
the action to be ratified, a clear statement that the
public body proposes to ratify a prior action and
information on how the public may obtain a detailed
written description of the action to be ratified.
The public body shall make available to the public a
detailed written description of the action to be ratified
and all deliberations, consultations and decisions by
members of the public body that preceded and related to
The public body shall make available to the public the
notice and detailed written description ... at least seventy-two hours in advance of the
public meeting at which the ratification is taken.
to start an investigation of a possible violation, see ARS 38-431.06.
And now, on to some of the OML violations that keep recurring in Cochise County.
SOME OML VIOLATIONS IN COCHISE COUNTY
This is not a complete list, which would be much longer. These
are only the most exceptional events in which Searle was personally
involved. [For a more comprehensive list, see http://littlebigdog.net/OML.htm ]
April 26, 2005: the Supervisors
adopted a rule
that lets two supervisors prevent the third from discussing any issue
they don't want him to. That meeting violated the OML in
ways: the agenda didn't comply with the OML; after an
session, supervisor Searle quoted advice that a county
gave in the executive session; and Searle's leak revealed that
rule was discussed in executive session even though it wasn't on
-- Violation 1: the Agenda said there would be an executive session to obtain legal
advice on the rights of Board members and personnel matters. But the Agenda violated the OML by not identifying the statute authorizing discussion of
personnel matters. The Agenda also violated the OML by
not saying what
the advice was about. The Agenda said the advice was about legal
rights -- which is meaningless, since all legal advice is about legal
rights. The OML is violated when the public isn't even informed of the
subject of legal advice that will be given. It turned out (see the
following paragraph) that the executive discussion discussed Resolution
05-20, which lets the two Republicans gag the one Democrat -- which you
couldn't tell by reading the Agenda.
-- Violation 2: the OML forbids leaking what is said in executive session, but in
public, supervisor Searle leaked that during the executive session, deputy county attorney Irwin advised the Board about Resolution
-- Violation 3: The Board violated the OML by discussing Resolution 05-20 in
executive session. The OML forbids an executive session from discussing anything not
on the Agenda, and Resolution 05-20 wasn’t on the executive session Agenda.
The result of these
violations of the OML is that Resolution 05-20 was dead the instant it
was passed, and it should stay
dead. But Searle won't acknowledge that.
On June 23, 2008, all
three county supervisors met with a few insiders to yak about local
business. The county government website posted notice of a
meeting, but no agenda. That violated Arizona's Open Meeting Law.
Then the supervisors further broke the law by discussing public
business with a few specially invited friends -- including Judy Gignac,
who's a contributor to supervisor Call, and is also his campaign
manager. How nice that the supervisors could talk to these people
without the public knowing about it beforehand.
Notice of a Work Session on 10 a.m. Monday, August 25, 2008, wasn't posted on
the county website until midafternoon Saturday, August 23. The notice
wasn't posted by noon, but appeared about 4 p.m. on Saturday.
That was about 6 hours too late, according to Arizona law.
A particular statute in the OML, ARS 38-431.02, controls the notices of public
meetings. Subsection C of the statute says "meetings shall not be held
without at least twenty-four hours' notice to the members of the public
body and to the general public."
Exceptions are allowed in actual emergencies, or if a meeting is
recessed and resumed, or if a "technological problem or failure" either
"prevents the posting of public notices on a city or town web site" or
"prevents the usage of all or part of the web site." But none of them
Under the law, when you must act within a certain time, "the time [is]
computed by excluding the first day and including the last day, unless
the last day is a holiday, and then it is also excluded" -- and every
Sunday is a holiday (ARS 1-243.A & 1-301.A.1).
So to give 24 hours' notice of a meeting at 10 a.m. Monday, you could
give notice by 10 a.m. the Sunday before -- except that because Sunday
is a holiday, you must act by 10 a.m. Saturday.
At least that's what the statute appears to say. If the county
disagrees, explaining shouldn't take long, because CCIPA's campaign to
get the county to follow the law has been going on for years.
The county did disagree. An email from the BOS clerk to me said
some county attorney opined that posting notice on Saturday, for a
Sunday meeting, was okay, because Sunday isn't a holiday
The anonymous staff attorney's posture is ridiculous,
because it gives ridiculous results. Yes, 4 p.m. Saturday is over 24
hours before 10 a.m. Monday, IF you count the holiday between Saturday
and Monday -- every Sunday being a legal holiday in Arizona. But if you
count Sunday hours toward the 24-hour requirement, then the county can meet the 24 hour requirement
even if it posts notices on Sunday itself. The county could set a
meeting for 4 p.m. Monday, and post notice as late as 3:59 p.m. Sunday,
and that would be fine -- under our county's ridiculous interpretation.
has already been posting notices of meetings as late as possible.
Typically, the agendas for BOS and P&Z meetings are finalized weeks
in advance, but only posted on a Friday (for BOS Tuesday meetings) or a
Monday (for P&Z Wednesday meetings). The incumbent
supervisors clearly want to keep citizens ignorant as long as possible.
people can't even trust what's posted on the county website, even
after county offices shut down on Friday. To discover
meetings set for Monday, people must check the county website all day
The fact that our county supervisors want to play this ridiculous game
is proof that we can't trust them. Trustworthy supervisors wouldn't
work hard to keep us ignorant of what they're up t
notice of the meeting was posted by noon -- not necessarily by 10 a.m.
-- on Saturday morning on the county BOS webpage by a link called
"Public Notice and Current Agenda." However, the link called
"Calendar/Agendas/Minutes," in larger type, did NOT have notice of the
meeting. This kind of problem with the county website has been
brought to the Supervisors' attention before. After this latest
mess, Supervisor Searle says "It makes perfect sense that the two should be linked. I will ask staff to
follow up on this change to the web page." We'll see if the
non-informative links are fixed, or if the county website continues to
September 2008: The question about links has been answered:
the county will continue to play games with its website.
Here's one of the county links to a special Board Of Supervisors
meeting on September 30:
Here's a screenshot showing the page taking you to that link (if you can't see the screenshot, it's posted at http://littlebigdog.net/___ForRichard1.jpg
When you follow the link shown on that page, here's what you get (if you can't see the screenshot, it's posted at http://littlebigdog.net/___ForRichard2.jpg
In other words, if you went to the county's usual site for agendas, you couldn't find the agenda of the September 30 meeting.
I pressed Searle about this. His final answer was "that he "was able to access this notice from both the main page of the website
and from the BOS page, I'm not sure where else a person might want to
look. The notice was posted around noon on Monday."
This is an extreme example of a phenomenon noted earlier on this site:
If you press Searle on the facts, he'll find a way to eel out.
I showed Richard the problem page, and told him how to get there,
and he denied it existed. This is not a healthy sign.
LETTING THE PLANNING DEPARTMENT BEND THE LAW
Here's a question I emailed
on October 6 and 7, first to the secretary of the Board Of Supervisors,
then, when she didn't answer, to Supervisors Searle and Call:
According to ARS 11-804.A.4., the P&Z Commission shall "Transmit
all of its recommendations, decisions, findings, reports and official
actions, regardless of vote, to the board of supervisors."
But at least twice lately, the Commission has voted on items without
the items later showing up on the BOS agenda. One item was defeated,
the other item was passed but over opposition from both ends of the
county political spectrum.
Is it okay for the items not to come to the Board, or are the items
being "disappeared" improperly?
the September 10 P&Z Commission meeting, the Commission voted
unanimously to recommend disapproval of an item. The agenda said,
"If the Commission makes a recommendation, the docket will be heard in
a public hearing before the Board of Supervisors on Tuesday October 7,
2008 at or after 9:00 a.m. at the same location as the Commission
meeting." Yet the recommendation of disapproval was not on the
BOS agenda for October 7.
The Planning Department had been pushing this item. It's a
proposal to combine a board to give advice about the building code,
with a board that would hear appeals from people who didn't like the
advice. Not a good idea. A violation of the American idea
of "separation of powers." But the Department put a lot of
work into it. Presumably the Department thought it would be
passed, and expected to tell that to the Supervisors on October 7.
But when the idea was unanimously defeated, the Department didn't
tell the Supervisors what happened. Sounds like the Department
broke the law, and its own rule, when it didn't tell the Supervisors
that its pet idea had been crushed.
This was similar to what
happened after the August 13 P&Z Commission meeting. At
that meeting, an item PASSED unanimously, and was supposed to go
to the Supervisors on September 9. Yet the item was opposed by
people including Jim Huff, who represents many real estate developers
who want this or that from the county. Mysteriously, the item
that Huff opposed never went to the Supervisors for a vote, even though
that's what the agenda said would happen if the Commission passed the
So the lesson looks like, Never mind the agenda, or the law, or county
policy: If the Department doesn't like the result of a Commission
vote, or if the Department takes heat from powerful private interests
after a Commission vote, then the Supervisors will never get to approve
or disapprove of what the Commission voted on.
Maybe my interpretation of these mysterious events is totally wrong.
Maybe there's a great explanation. But an explanation is
all I asked for when I mailed Call and Searle. Answer:
nothing, from either one of them. So it's reasonable to
conclude that Call and Searle don't care what games the Planning
Department plays. The Department is, of course, Call's personal
fiefdom, and there's no reason to expect Call to answer questions from
mere citizens; but what's Searle's excuse?