Arizona Eagletarian

Arizona Eagletarian

Monday, June 29, 2015

The PEOPLE of Arizona WIN!

In a 5-4 decision, Justice Ruth Bader Ginsberg wrote the opinion validating the right of the American people to draw the maps to choose their own representatives in the United States House of Representatives. Justice Anthony Kennedy represented the swing vote in this monumental decision that will go down in history right alongside the popular election of U.S. Senators.

JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns an endeavor by Arizona voters to address the problem of partisan gerrymandering—the drawing of legislative district lines to subordinate adher­ents of one political party and entrench a rival party in power.1“[P]artisan gerrymanders,” this Court has recog­nized, “[are incompatible] with democratic principles.” Vieth v. Jubelirer , 541 U. S. 267, 292 (2004) (plurality opinion); id., at 316 (KENNEDY, J., concurring in judg­ment). Even so, the Court in Vieth did not grant relief on the plaintiffs’ partisan gerrymander claim. The plurality held the matter nonjusticiable. Id. , at 281. JUSTICE KENNEDY found no standard workable in that case, but left open the possibility that a suitable standard might be identified in later litigation. Id. , at 317. [...]
In sum, our precedent teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may in­clude the referendum and the Governor’s veto. The exer­cise of the initiative, we acknowledge, was not at issue in our prior decisions. But as developed below, we see no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking. [...]
In accord with the District Court, see supra, at 9, we hold that the Elections Clause permits the people of Ari­zona to provide for redistricting by independent commis­sion. To restate the key question in this case, the issue centrally debated by the parties: Absent congressional authorization, does the Elections Clause preclude the people of Arizona from creating a commission operating independently of the state legislature to establish congres­sional districts? The history and purpose of the Clause weigh heavily against such preclusion, as does the animat­ing principle of our Constitution that the people them­selves are the originating source of all the powers of government. 
HUGE thanks are due to several people at this historic moment.

First, the co-authors of Prop 106, Bart Turner, Dennis Burke, and Ann Eschinger.

Also, the current members of the Arizona Independent Redistricting Commission, Linda McNulty, Cid Kallen, Scott Freeman, Rick Stertz and Colleen Coyle Mathis; and the staff, especially executive director Ray Bladine and deputy director, Kristina Gomez.

From the AIRC:
Commission Chair Colleen Coyle Mathis said: “We are thrilled with the Court’s decision.  Arizona voters decided that they wanted an independent citizen commission, rather than the Legislature, to be responsible for both congressional and legislative redistricting when they passed Proposition 106 in 2000.  This is a victory not only for the people of Arizona, but for the entire country.  We are very grateful for the superb advocacy of Seth Waxman and his team at Wilmer Hale as well as all those who submitted amicus briefs on our behalf.”  
From Prop 106 co-author (and Glendale City Councilman) Bart Turner:
What a relief to see the Court has chosen to continue the string of last week’s common sense rulings with one more today that allows voters to begin to regain control of their Congress by establishing independent redistricting commissions. Where incumbents are allowed to choose their voters, election outcomes are, in essence, pre-ordained. Where independent commissions are used to draw district lines voters have more real choices, candidates actually compete for votes, and winners govern more in the interest of all citizens, not just in the interest the base of their political party.
Lastly, on this momentous day, I'll call to your recollection what I said in the wake of the oral arguments, on March 5 I closed my blog post with this,
The bottom line is that, in my view, predictions of the demise of independent redistricting are stupendously premature. There is absolutely ZERO legitimacy, from the 18th Century understanding and view of Republicanism, in what the Arizona Legislature has done and is doing with this lawsuit.
Last week, I wrote,
The other big one I'm watching, naturally, is on Congressional redistricting. After the oral arguments, most (but not all) court watching pundits seemed close to 100 percent certain the legislature would win this one. A few saw it differently. I'll side with the few, at this point. As I have written since early March, the court must have considered substantially more than what was covered in the oral arguments.
The fight for the PEOPLE never ends, as the plutocrats and oligarchs will never stop trying to usurp the people's authority. But this is a HUGE victory.

Big thanks are due to supporters of the Arizona Eagletarian, especially for allowing me to witness the oral arguments. Without that experience, I too may have doubted the outcome. Though I hedged in print and in conversation, in my heart I believed from the start that this outcome was the only rational decision that could have been made.

Friday, June 26, 2015

AZ Corporation Commission BLINKED!

Until today, the Arizona Corporation Commission, in its ongoing effort to avoid having the light of accountability shined on the dubious conduct of Trash Burner Bob Stump, has continued to resist efforts to demand access to Stump's government-funded cell phone.

Slime-dog millionaire, David Cantelme, outside counsel to the ACC, has, heretofore creatively danced around the clear and emphatic spirit and letter of the law. Last Friday, Checks & Balances Project counsel Dan Barr sent the ACC a final demand letter.
Says C&BP attorney Dan Barr: “It would have been far easier for Commissioner Stump to comply with his legal duties under the Public Records Law had he used his Corporation Commission email account instead of texting on his private phone and then apparently deleting many of those texts soon afterward. Nevertheless, those text messages are still on Commissioner Stump’s phone. The Corporation Commission has two choices and only two choices. Either it will comply with the Public Records Law and give us access to Commissioner Stump’s phone so we can extract those texts that are public records from it or we will get a court to order them to do so.”
Of course, hoping to suggest the ACC doesn't have such a weak position on refusing to disclose or cooperate, Cantelme waited until the proverbial eleventh hour to respond. Nevertheless, the language in his response clearly reveals the weakness of the ACC position despite the characteristic ambiguity of expressions and glaring misdirection.
Suffice it to say that your June 19 letter failed to address the fact that the Legislature never intended that all public records would be kept permanently. Rather, in A.R.S. § 41-151.12 (A)(3) it delegated to the State Library Director authority to adopt retention schedules, which she has done.
That, my friends, in the context in which Cantelme used it, is pure bullshit. From a previous blog post here, the State Library Director addressed what Cantelme hopes nobody remembers.
7. What is the retention for any records that are involved in litigation? We are not always notified when the litigation ends so this is creating confusion. During the course of any public records request, litigation, audit or government investigation, the destruction of any corresponding records needs to be placed on hold.
Immediately after Cantelme points out what he wants readers to believe is the error of CB&P's ways (or at least of Dan Barr's interpretations of AZ Public Records Law), the slime-dog says, in essence, there's no point in us going tit for tat with letters back and forth.
That said, there is no point in us engaging in a continuing "battle of letters," which will only waste time and money. Rather, now, it is time to try to resolve this dispute in a practical manner, if we can, short of a lawsuit.
Of course, he doesn't just want to come out and say, "you've backed us into a corner and the only way out for us is to try to suggest a way to comply while still desperately holding on to a modicum of dignity." Because, naturally, neither he nor the Stumpmeister even comes close to having any dignity remaining.

The best he can do is suggest what Barr demanded last week. However, Cantelme appears unwilling to have C&BP counsel present when the ACC forensic expert checks for recoverable text messages. One can only surmise the purpose is Cantelme's hopes and effort to control the process and obscure whatever is found on Stump's phone as much as possible.

The ACC letter says that on Monday (June 29) they will start calling retired judges to see if they can find one willing to oversee the process. Then they'll try to find a forensic expert. The only good thing, as I see it, in the letter is that they indicate Stump's cell phone has been confiscated for safekeeping and Stump issued a new one.

I have to wonder if Stumpy has been instructed to take a refresher course in ethics and public records responsibilities. Ooops, according to the National Conference of State Legislatures, Arizona not only appears to be deficient in statutory framework for keeping public officials on the straight and narrow, but also does not even have an ethics commission.

In Arizona Revised Statutes, Title 41 establishes the framework for how state government is to operate. A search of Title 41 on the word "ethics" only returned ONE reference. A.R.S. § 41-1279.01 requires the Auditor General to be a CPA and subject to ethical standards of the profession.

Title 38, on Public Officers and Employees, however, doesn't have much more than that. § 38-519 says each legislature (each 2-year term, is considered a new legislature, currently the 52nd Legislature is in office and will be until January 2017) gets to write its own ethics rules. Title 40 governs Public Utilities and Carriers. The first ten sections in Title 40 are specifically about the Corporation Commission. Searching for "ethics" in Title 40 returned NO references. Apparently, nothing in statute appears to govern the ethics of Corporation Commissioners.

But I digress.

The Attorney General's Office has an orientation handbook for public officials. The problem with that is whose name is on it: Tom Horne, who was known for his deficient practices when it came to ethics.

The first statement in the handbook IS about state ethics policy. Yet discerning readers may be able to recognize that a reference only to a 1992 session law (a bill that passed and enacted but did not change anything in statutes), in the wake of AZSCAM, may have loopholes big enough to fly a 747 carrying a Space Shuttle through.
It is the public policy of this state that all public officers and employees of this state shall discharge their public duties in full compliance with applicable laws concerning ethical conduct. To ensure that state public officers and employees know the standards of conduct against which their actions will be measured, information shall be provided to state departments, agencies, boards, commissions and councils on compliance with laws on ethics...." 1992 Ariz. Sess. Laws, ch 134, §1.
It sounds intimidating... well, at least to new officials and employees. But obviously, not enough to motivate Trash Burner Bob to conduct himself within reasonable ethical boundaries. A few paragraphs later...
Transgressions, whether intentional or negligent, may have devastating professional and personal consequences and harm the integrity of the State.
They MAY... but then again, they may not? If it really was the case, Trash Burner Bob would probably already be out on his ass hoping for APS to hire him. If it was that such transgression SHALL bring devastating consequences, the AG manual would probably spell them out.

The fact of the matter is that this evening I have begun to grasp the gross inadequacy of ethics laws governing the conduct of elected state officials.

Let's see if any bold and daring member(s) of the legislature, or local corporate media recognize the deficiency and begin to address it. But I caution against anyone holding their breath until the legislature fixes these deficiencies.

In the meantime, expect at least a few more exchanges in the "battle of letters."

Scott Peterson, exec. director of the Checks and Balances Project released this statement today,
Only 11 days ago, the Commission insisted that the law didn’t require them to make Bob Stump’s text messages public, and anyway, the text messages didn’t exist. Now they have a new idea: they choose their own forensic expert, who would be able to select exactly what he or she is instructed to download. A judge they select would supervise, and the Commission would deliver the results.
That’s not enough. Each side's expert should be allowed to do their own downloads, so there is no question afterward about fairness and that the citizens of Arizona can be reassured that public records have not been hidden from view."

Thursday, June 25, 2015

SCOTUS ruling imminent: Arizona Legislature v the PEOPLE of Arizona

Of course that's not the actual title/caption for the lawsuit heard by the Supreme Court on March 2nd, but that's the essence and Arizona Eagletarian readers have known that for quite a while. As I sit and write this post, there are only two more days left for the court to release and publicize opinions/rulings in its biggest cases of the year.

Most observers seem to think marriage equality will be validated by the court, so that ruling, unless it comes down differently, will be anti-climactic.

The other big one I'm watching, naturally, is on Congressional redistricting. After the oral arguments, most (but not all) court watching pundits seemed close to 100 percent certain the legislature would win this one. A few saw it differently. I'll side with the few, at this point. As I have written since early March, the court must have considered substantially more than what was covered in the oral arguments.

As we wait for this big announcement, lots of people are getting antsy. I expect to write a couple of posts after the big revelation, but figured that one of the most pressing questions for the moment is "what happens if the legislature wins?"

Here's how I see it playing out, if that happens. First, I'll hedge a bit and say the outcome in this scenario is only speculation. However, the legislature has already announced that it has hired Doug Johnson of National Demographics Corporation to re-do the Congressional map. Biggshot and Gowan may be playing coy, but I find it near impossible to believe they haven't already gotten Johnson/NDC to make the final map they want to approve. On June 6, the Republic reported,
The meter's running ... Work has already begun on drawing new congressional maps at the Legislature, even as the political world awaits a ruling from the U.S. Supreme Court on whether that would even be needed.
The House and Senate leaders inked a $65,000 contract with National Demographics Corp. in late May. The Glendale, Calif.-based firm is no stranger to Arizona: It did the redistricting duties for the Arizona Independent Redistricting Commission in 2001.
According to the contract, work has already begun on compiling a demographic database to guide the mapping. The bill for the half payment of $32,500 has already been invoiced.
And if the high court sides with lower courts that the IRC is constitutionally permitted to draw the congressional maps? Well, the bill will be pro-rated so NDC is paid only for the work done thus far, Senate spokesman Mike Philipsen said. 

All that would be left is the charade the two chamber leaders have to conduct to make the Republican caucuses believe that they (the rank and file members) have a substantive say in the outcome. Remember, this court decision only impacts Congressional redistricting. How the districts get drawn for choosing your state lawmakers will not be directly impacted by the pending decision.

As far as I know, the main objective for a new map would be to weaken the competitive balance of the First and Ninth districts (currently held by Democrats Kirkpatrick and Sinema) slanting them and the Second district (currently represented by Republican McSally) to make all three easier for Republicans to win/keep. What would they do with the extra Democratic voters in those three districts? First, pack some of them into the two Latino districts, the Third and Seventh (currently held by Grijalva and Gallego). The rest would get absorbed into already very safe Republican districts (currently held by Franks, Gosar, Schweikert and Salmon).

Now, about those probabilities....

Political analyst Sean Trende ran a story, Supreme Court Bingo on the Real Clear Politics website. He speculated based on which justices have written how many opinions this term. Reflecting on his predictions, Trende wrote today,
Conservatives were disheartened by the Court’s rulings Thursday in King v. Burwell and Texas Department of Housing and Community Affairs v. The Inclusive Project. They probably will be disheartened if the Court rules that gay marriage is a constitutional right, which seems likely. I suspect I got the authorship of the Arizona redistricting commission case wrong in my Supreme Court Bingo article: the opinion assignments make more sense if Justice Kennedy lost his majority in Din, which would suggest Justice Ginsburg is writing the redistricting commission opinion. That means conservatives may well be disappointed in the outcome of that opinion as well.
Do you think Mr. Trende was referring to California's Republicans when he wrote that paragraph. I'm guessing, not. From the (Riverside, CA) Press-Enterprise,
What’s good for Arizona Republicans could spell trouble for their California counterparts if the U.S. Supreme Court sides with the plaintiffs in a lawsuit over political redistricting.
Before its term ends in June, the high court is expected to issue a ruling in a case brought by Arizona’s GOP-controlled legislature, which is challenging the legality of the state’s redistricting commission.
The plaintiffs contend the U.S. Constitution gives legislators the sole authority to approve congressional district boundaries. The commission’s supporters maintain that Arizona’s voters, who approved the commission at the ballot box, have the right to choose who draws those districts. [...]
A ruling for Arizona legislators could put California’s Legislature back in charge of congressional districts. That could be bad news for Golden State Republicans because Democrats control the Assembly, state Senate and governor’s office.
It also would be bad for California, said Jack Pitney, a professor of politics at Claremont McKenna College.
“Although activists were able to game the California system, it is still preferable to a system where politicians pick their voters instead of the other way around,” he said. “At least there has been some competition in some districts, whereas under the previous system of gerrymandering, there was practically no competition at all.”
If the court rules in favor of the legislature, all pretense of Congress being anything but an oligarchy will collapse like an epic Antarctic ice sheet.

BUT... and this is where we go back to the legacy of Gov. George Hunt. The people would have the option to challenge the legislature's Congressional map with a referendum

We will find out either Friday or Monday morning.

Wednesday, June 24, 2015

Ain't nobody gonna take my guns!

In the mid-1990s, while going through divorce litigation, I read Gail Sheehy's book Pathfinders. Besides the inspiration Sheehy provided during a difficult time for me, I found her writing style particularly engaging. So, recently when she announced that her memoir, Daring: My Passages would be released on June 23rd, I pre-ordered and began reading it last night.

This evening, I came across an intriguing passage. Sheehy had been tapped to cover the 1968 presidential campaign of Bobby Kennedy for New York Magazine. About a campaign stop in Oregon, Sheehy writes (from pages 62-63 of the paperback edition of Daring),
John Birchers were out in force, waving professionally printed signs: PROTECT YOUR RIGHT TO KEEP AND BARE ARMS.
A woman holding a McCarthy sign stopped him; "I hear your dog bites."
"He only bites children." Kennedy's quick wit usually melted hecklers, but in this place it was not working. The woman grew surlier. "They say you're ruthless." He flashed his big, blunt, uncontainable eighty-eight keyboard smile. "Now, can anybody with a smile like this be ruthless?"
A young man tapped him on the shoulder. "I've been waitin' two hours to tell you, I'll shoot somebody before I see a Nazi like you in the White House." Kennedy pretended not to hear. Now the senator climbed halfway up the steps of the Douglas County Courthouse. He turned, and in full unprotected view, looked down the barrels of this mostly hostile crowd and tried to engage them in a friendly debate. This was courage. 
"I hear the local radio station said, 'Vote against Robert Kennedy because he's going to take your guns away," he said. "I'd like one of you to come here and explain that issue to me."
A young man approached him. Kennedy looped his arm over the man's shoulder. "I know some of you are volunteers with the sheriff's posse. Did you know that 90 percent of the policemen who've been shot and killed in the United States in last two years have been shot by people who shouldn't have guns -- people with criminal records or who have been judged insane?"
On June 4th, just a week after losing the Oregon primary, Kennedy won the California contest. Just after midnight, that evening, RFK was shot. He died in the hospital a day later.

That was 1968. Forty-seven years ago. Today, thanks to financial (charitable) contributions from longtime Birchers, the Koch brothers have reinvigorated the movement in the form of the Tea Party. The schtick about a Democratic president planning to "take away your guns" rages more fervently than ever. Yet now, it gets amplified by Wayne LaPierre and (ALEC member) National Rifle Association, especially and immediately after mass shootings like Sandy Hook and the latest, in Charleston.

Sheehy has to some extent influenced me. I hope to continue writing for many years to come.

Tuesday, June 23, 2015

California's Public Utility Commission and the AZ Corporation Commission -- Compare and Contrast

A couple of days ago, a San Francisco Chronicle story, Report blasts secret talks between utilities, CPUC looked like déjà vu all over again, from where we sit in Arizona. It begins,
The ability of Pacific Gas and Electric Co. and other utilities to engage in back-channel talks with top California Public Utilities Commission officials unfairly skews decisions in favor of big-money interests, and the practice should be banned in rate cases, a review requested by the state agency concluded Monday.
Such back-door communications became notorious last year when e-mails showed that a PG&E executive had engaged in a secret campaign to obtain a preferred judge in a $1.3 billion rate-setting case before the utilities commission. Those and other back-channel contacts — known as ex parte communications — are the focus of federal and state criminal investigations into whether commission officials violated influence-peddling or other laws. 
In the aftermath of the judge-shopping revelations, the utilities commission hired the Strumwasser & Woocher law firm of Los Angeles to review its practice of allowing commissioners and their aides to meet with utility executives in rate-setting cases without other parties, such as customer advocacy groups, being present. Currently, rules require that the commission notify all parties of such solo talks three days in advance and that utilities submit a report on what was said.
PG&E, an infamous IOU (investor-owned utility), apparently was not sufficiently humbled in the wake of Erin Brockovich and her successful advocacy for victims of that utility's dumping of toxic waste. Anyway, decision makers over at PG&E seem to have thought they could get away with secret negotiations involving who knows what inducements to the CPUC officials to set rates not necessarily in the best interest of ratepayers.

Sound familiar? Here's what the California regulatory agency says about itself,
The CPUC regulates privately owned electric, natural gas, telecommunications, water, railroad, rail transit, and passenger transportation companies. The CPUC serves the public interest by protecting consumers and ensuring the provision of safe, reliable utility service and infrastructure at reasonable rates, with a commitment to environmental enhancement and a healthy California economy.
Yeah, well maybe. BUT, here's where the CPUC differs in practice with the Arizona Corporation Commission. The ACC hired an aggressive local attorney (David Cantelme) with known political leanings favorable to plutocratic Republican elected officials. In contrast, the CPUC hired a law firm to evaluate the commission's practice and then perhaps take action to demonstrate it takes the interests of utility customers and California citizens seriously. Another excerpt from the SFChronicle story,
The law firm’s report, the product of 88 interviews of current and past commission officials, concludes that such “communications are a frequent, pervasive, and at least sometimes outcome-determinative” in rate-setting cases. 
The complexity of regulatory cases, the lawyers found, often means that checking on what is said during such meetings is difficult at best. The void allows utility lobbyists to exploit their personal relationships with decision-makers, the authors concluded, “sometimes overtly with ‘you know me’ and ‘you know you can trust me’ assurances, sometimes implicitly after years cultivating personal relationships.”
The lawyers said they had received “disturbing reports” that top commission officials went so far as to “assist parties by telling them what to do or say in aid of their cases in communications that were undisclosed, in reliance on a claimed loophole in the disclosure rules — a loophole that we have found does not actually exist.”
Say what you will about California being a "socialist" state, but accountability, in this case, is more than just a buzzword. When this problem came up, the CPUC addressed it head-on. In Arizona, the ACC, functioning as a wholly-owned subsidiary of Arizona Public Service, has taken to mimicking cockroaches that scurry for darkness when the kitchen light gets turned on in the middle of the night.

By the way, the ACC also last Friday, according to the Yellow Sheet Report (6/22), fired its long-time public information officer, Rebecca Wilder. Dare I speculate that her replacement will fit with Cantelme's attack dog demeanor?

More from the SFChronicle,
The [report] authors concluded that such back-channel contacts have the “unavoidable effect of moving actual governmental decision-making out of the public eye” and “are fundamentally unfair to the parties, who are not adequately informed” in time to do anything about it before the commission rules on rate-setting requests.
It called for banning such back-channel talks altogether in rate cases, saying the current rules “systematically favor the interests of utilities and other well-funded parties.” 
Legislation has since been introduced in the California legislature to address these concerns. Just what kind of response do you think we can expect from the likes of Andy Biggshot and David "Big Spender on House perks" Gowan to the corporation commission scandal in the making?

Probably nothing more than the sound of crickets.

By the way, have you been wondering why APS worked so diligently last fall to purchase favor from the current Arizona Attorney General, Mark Brnovich? He may have recused himself from investigating Trash Burner Bob Stump, the ACC and APS. But has any Arizona law enforcement agency or officer appeared to be doing ANYTHING about bringing the situation into the light?

I hope the Checks and Balances Project has plenty of stamina.

Friday, June 19, 2015

Stump and ACC get body Check(ed) for Balance.




Despite the shortcomings of the Fourth Estate here in Arizona, and despite Republican opposition to being held accountable, eventually there will be (body) checks (figuratively, of course) to limit abuse of power and legal (and illegal) corruption in our state government.

Yesterday, I questioned the depth (lack thereof) of coverage by the Arizona Republic and the Arizona Capitol Times' Yellow Sheet Report concerning the ongoing effort by Virginia-based Checks and Balances Project to compel disclosure of ex parte communications between Trash Burner Bob Stump and Arizona Public Service.

APS, of course, is the largest Investor-Owned Utility in our state and is ostensibly regulated by a commission to which the people of Arizona delegate authority by way of the state constitution and elections for commissioners. Also yesterday, while I toiled away at my keyboard, as I suspected, C&BP attorney Dan Barr was busy preparing the next step.

This morning, C&BP released a statement along with a "final demand letter" to the Arizona Corporation Commission.
June 19, 2015 – Checks and Balances Project (C&BP) announced today that it has sent a letter to the Arizona Corporation Commission to demand immediate access to Commissioner Bob Stump’s phone and other devices that use the (602) 647-0433 phone number. If the Commission refuses to comply by 5:00 p.m. on June 26, 2015, C&BP will file a special action in Maricopa County Superior Court to obtain access to the phone and public records that remain on them. 
“Commissioner Stump’s text message logs and emails appear to show that he was conducting public business on his private Verizon account to promote the interests of monopoly utilities,” said Scott Peterson, executive director of C&BP. “Now the Commission has hired a high-priced attorney at public expense to assert that the messages are gone. Yet readily available technology or the Commission’s own subpoena powers put these messages within easy reach. Let’s be clear. The Commission can get these messages. They just don’t want anyone to see them. [...]
Says C&BP attorney Dan Barr: “It would have been far easier for Commissioner Stump to comply with his legal duties under the Public Records Law had he used his Corporation Commission email account instead of texting on his private phone and then apparently deleting many of those texts soon afterward. Nevertheless, those text messages are still on Commissioner Stump’s phone. The Corporation Commission has two choices and only two choices. Either it will comply with the Public Records Law and give us access to Commissioner Stump’s phone so we can extract those texts that are public records from it or we will get a court to order them to do so.”
From the final demand letter, (rather than transcribing it, here are screenshots of it)



So, there you have it. If we don't hear from the Corporation Commission by next Friday, we can expect Barr to file a special action in Maricopa County Superior Court to compel disclosure. Barr and C&BP have retained the services of a forensic expert to, once access is given to the Stumpmeister's cell phone, retrieve the content of the text messages in question.

I will keep you posted. In the meantime, stay hydrated and as much as possible, stay indoors... if you're anywhere in the central Arizona desert regions.

Thursday, June 18, 2015

Trash Burner Bob Stump -- ethical and moral... Titan? Hardly.

You may have heard by now that one of my favorite people in all of Arizona, David Cantelme, in his role as outside legal counsel for Trash Burner Bob Stump and the Arizona Corporation Commission, has gotten quite creative. In his efforts to justify the Stumpmeister's unlawful subversion of the People's right to examine public records of his official communications with Arizona Public Service, he suggests Bob has done no wrong.

Both Laurie Roberts of the Arizona Republic, and that infamous gossip rag of the Plutocratic set in our great state, the Yellow Sheet Report, have both set forth the issue. From Roberts,
So a state regulator is regularly texting a utility executive, a pair of utility-friendly candidates and the head of a dark-money group that campaigned for those candidates. He then routinely deletes the text messages, despite the fact that such communications are public record.
And when questions arise about the content of those messages, we are told he's thrown away his cell phone. His state-supplied cell phone.
Convenient, isn't it?
From the Yellow Sheet,
The Corp Comm’s letter to Dan Barr yesterday revealed for the first time that Stump had disposed of his cellphone and that he had been routinely deleting messages on that phone and on his current one. But David Cantelme, the outside counsel hired by the Corp Comm, maintained that there are no inconsistencies to the facts that have come to light. When asked why the public is learning of these facts only now, Cantelme said the commission answered questions as they were raised. “The deletion of text messages should come as no surprise to anyone, because that’s consistent with the document retention protocol published by the director of state archives,” Cantelme said. In his letter to Barr, Cantelme expressed confidence that Stump’s text messages were nothing more than “general correspondence” or “transitory materials.” When asked today how he can be so sure that’s the case, Cantelme told our reporter he arrived at this conclusion by first noting that texts are typically brief communications. “Point No. 1 is the nature of the medium,” he said. “Point No. 2 is this is the information I’ve been given, so I’m going to leave it at that.” When our reporter pointed out that there is no independent way to verify if the information he was given is correct, Cantelme replied that “the nature of the retention protocols depends on the individual officer to observe them, and that’s the way it’s been established so you have to take it as it is.”
Well, since I'm not an attorney specializing in public records law in Arizona, I am reluctant to say whether (or NOT) Cantelme's point is legally valid. However, I can say that the director of the state archives isn't the Arizona Attorney General or the state Supreme Court. In other words, if the director of state archives is not generally concerned -- when writing policy for record retention -- about whether there is a legal or political reason for text messages to be preserved, it would only be because of perspective as a historian rather than as a legal advisor.

From the State Library's website,
The State Archives, located in the Polly Rosenbaum Archives and History Building, collects, preserves and makes available to the public and all branches of government, permanent public records, historical manuscripts, photographs and other materials that contribute to the understanding of Arizona history. 
That statement fosters a retrospective look at what has gone on, as opposed to evaluation of near real time records to determine if any law has been broken. But is that all the State Librarian or director of the State Archive has to say about it? Can it really be the case that the agency giving direction for preservation of public records would suggest, imply or otherwise specifically state that Arizona law provides a nonchalant mechanism to help a potential lawbreaker get away with his crimes?

Again, from the Yellow Sheet,
Cantelme also said there is no need to adopt a policy above and beyond the retention schedules outlined by the State Library’s director. He noted that the schedule for keeping public records on electronic media is essentially no different from the schedule for paper records. Arizona law delegates to the director of the State Library the authority to set rules for preserving and managing government records. The rules apply to electronic communication, including email correspondence and text messages.
Well, not that you'd be surprised, but I would disagree with the slimy bastid. The State Librarian does have guidelines and several publications that demonstrate the ongoing development of policy to adapt to any new medium for potential public records (and text messaging apparently is new enough that policy hasn't been FULLY developed yet).

Notable quotes that would seem to shed some light on this situation, from a list of frequently asked questions,
Litigation and Records
7. What is the retention for any records that are involved in litigation? We are not always notified when the litigation ends so this is creating confusion. During the course of any public records request, litigation, audit or government investigation, the destruction of any corresponding records needs to be place on hold. Once the litigation, audit or government investigation is finished, then the records may be destroyed based upon their original retention period. Any records involved in litigation, audit or government investigation cannot be destroyed until it has been determined that the action has ended, and any related actions (appeals, etc.) have been completed. In order to destroy the records as presented in your email, someone from the Fire District will need to received documentation that the litigation has ended before any records can be destroyed. Without this formal notification that the litigation has ended, I would recommend that you NOT destroy the Records. (emphasis in original)
And another, related to social networking records present additional issues for records retention because the medium is so new. (is text messaging a social networking mechanism?)
The Statutory requirements regarding Records Management of public records are never easy, and that is especially so for these records. You need to be prepared for these challenges, and aware of the difficulties you will face in complying with these requirements regarding SocNet records. Our Agency is aware of these difficulties, and that is our main reason for providing this Guidance. It is our hope that you will be able to think about these issues before you decide the extent of your involvement in SocNet /Web 2.0 – and take the necessary steps to ensure successful management of these records. And remember, e-mail has been around for over 15 years and we are all still trying to find the most efficient and cost effective manner for properly managing e-mail records.
In the same document,
Title 41-1350. Definition of records
“In this chapter, unless the context otherwise requires, "records" means all books, papers, maps, photographs or other documentary materials, regardless of physical form or characteristics, including prints or copies of such items produced or reproduced on film or electronic media pursuant to section 41-1348, made or received by any governmental agency in pursuance of law or in connection with the transaction of public business and preserved or appropriate for preservation by the agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the government, or because of the informational and historical value of data contained therein. Library or museum material made or acquired solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference and stocks of publications or documents intended for sale or distribution to interested persons are not included within the definition of records as used in this chapter. (emphasis, though not in statute books, IS in the original as published by the State Library)
So, not that I'm rendering any legal opinion or advice, because I am not. But I AM reading from a source Cantelme suggests provides Trash Burner Bob Stump a lawful way to get out of having to disclose records that he KNOWS (now and should have known when he engaged in those text message exchanges) likely will be subject to litigation.

Since Cantelme was writing to counsel for the Checks and Balances Project (Dan Barr), I'm confident Mr. Barr is already familiar with plenty of material that demonstrates just how full of it Cantelme really is. So, I won't ramble on about it.

I am also curious as to why local "journalists" who specialize in covering Arizona government aren't asking this kind of question and reporting on it. Laurie Roberts did make it pretty clear she thinks the situation stinks. But I don't know how deeply she investigated to discern whether or not Cantelme's guidance was legitimate.

Anyway, click this link to read the letter on which both Roberts and the Yellow Sheet reported. Of course, I think Cantelme's full of **it. I'll let you decide for yourself. However, his conclusion,
Under these circumstances, the Commission believes it has produced all public records responsive to the request made by Checks and Balances.
Appears on its face to be dubious at best.