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
.   http://littlebigdog.net/IndeMotorsportsWillcoxAZRoad.htm
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

Raytheon Recklessness
    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
    Items get 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.

OCOTILLO ROAD
    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

Emails 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.

County 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 BACKGROUND

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 about $125,000.

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.

THE DISPUTE

After the repaving of Ocotillo fell apart, an outside evaluation concluded that Huachuca Concrete provided good gravel, but that the county adulterated and mishandled it.

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.

THE CORRESPONDENCE

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 told Owen.

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 investigate."

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):

    http://littlebigdog.net/Tillo041228.jpg

    http://littlebigdog.net/Tillo050103.jpg

    http://littlebigdog.net/Tillo050204p1.jpg

    http://littlebigdog.net/Tillo050204p2.jpg

    http://littlebigdog.net/Tillo061204.jpg

    http://littlebigdog.net/Tillo061214p1.jpg

    http://littlebigdog.net/Tillo061214p2.jpg

    http://littlebigdog.net/Tillo070109.jpg

    http://littlebigdog.net/Tillo071119p1.jpg

    http://littlebigdog.net/Tillo071119p2.jpg

    http://littlebigdog.net/Tillo071119p3.jpg

    http://littlebigdog.net/Tillo071129.jpg

    http://littlebigdog.net/Tillo071130.jpg

    http://littlebigdog.net/Tillo071206-1.jpg

    http://littlebigdog.net/Tillo071206-2.jpg

    http://littlebigdog.net/Tillo071207.jpg

    http://littlebigdog.net/Tillo071210-1.jpg

    http://littlebigdog.net/Tillo071210-2.jpg

    http://littlebigdog.net/Tillo071211p1.jpg

    http://littlebigdog.net/Tillo071211p2.jpg

    http://littlebigdog.net/TilloPIForm.jpg

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 quick response.

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 his opponent.

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 asphalt.
   "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,
    at http://littlebigdog.net/Ocotillo1Pace.htm
    and http://littlebigdog.net/Ocotillo2Memo.htm
    and http://littlebigdog.net/Ocotillo3Spreadsheet.htm
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.


The 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:
   "Ms. 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 the future.
    "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 strengthen.
    "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.
    The "20% 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."
    Tricky Dick.
    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.
    Whatever 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 Newman.
    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 time.

Here are links to all 7 pages of minutes of the 3/19/07 meeting:

http://littlebigdog.net/BOS200703191.jpg

http://littlebigdog.net/BOS200703192.jpg

http://littlebigdog.net/BOS200703193.jpg

http://littlebigdog.net/BOS200703194.jpg

http://littlebigdog.net/BOS200703195.jpg

http://littlebigdog.net/BOS200703196.jpg

http://littlebigdog.net/BOS200703197.jpg



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 per day.

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 deputy!!! ...
    "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 Springs Valley.

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


Under 05-20, the concerns of Newman's district need never be considered. Call and Searle may agree to hear the concerns of Newman's constituents, but that is just a matter of grace -- voters in Newman's district have no right to be heard.  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, 2005.
   "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 its officials.
   "Supervisor Searle made a motion to direct the County Attorney to provide the Board members with a written legal opinion regarding the procedure to request work sessions and whether or not it affect the right of a supervisor to be heard . . . . The motion was unanimous."

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.

Soon 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.

Searle 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 constituency means."

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 learns.

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 ...."


As 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 changing.



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

Searle 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.


RAYTHEON RECKLESSNESS

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.

To 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 public."

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 the report,
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 deficit.

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:  Planning up 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.)

In 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 $1,000,000.

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 decline.

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 downward.

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.

COUNTY GOVERNMENT
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 galling.

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 their claim.
    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 units.
    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 preventable fires.
    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 immeasurable.
    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

On 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.

At 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 disappeared.

But 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.

On 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.

Supervisor 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 therefrom."

Citizens 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 foot-stretching exercises. 

    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.

"Authorities" 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 Call's thumb.

Searle 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 shambles.

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,"
then gives examples of how little it means in Cochise County.
To jump 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 ]

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

A. All meetings ... shall be public meetings and all persons ... shall be permitted to attend and listen ....

B. 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:

...

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

C. Minutes of executive sessions shall include ... an accurate description of all instructions given pursuant to section 38-431.03[(A)(4), (5) and (7)] and such other matters as may be deemed appropriate by the public body.

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

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

...

G. 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 action.

Closed Meetings, Called "Executive Sessions"

ARS 38-431.03 Executive sessions

A. 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!]

1. Discussion or consideration of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of a public officer, appointee or employee ....

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

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

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

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

...

7. Discussions or consultations ... regarding negotiations for the purchase, sale or lease of real property.

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

...

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

...

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

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

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 attorney-client privilege.

(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

The 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.]

ARS 38-431.05 states:

A. All legal action transacted by any public body during a meeting held in violation of any provision of this article is null and void except as provided in subsection B. [NOTE:  Despite this statute, the state Attorney General recently issued an 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.]

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

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

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

3. The public body shall make available to the public a detailed written description of the action to be ratified and all deliberations, consultations and decisions by members of the public body that preceded and related to such action....

4. 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.

For how 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 three ways:  the agenda didn't comply with the OML; after an executive session, supervisor Searle quoted advice that a county attorney gave in the executive session; and Searle's leak revealed that the rule was discussed in executive session even though it wasn't on the agenda.
    -- 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 05-20.
    -- 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 applies.
   
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.
    The county 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.
    So now 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 Sunday!
    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
    [Followup:  apparently 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 mislead people.]


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:
    http://www.co.cochise.az.us/BOS/MeetingMinutes/9.30.08%20Special%20Mtg.htm

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?

At 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 item.  

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?