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."