According to a minute entry issued by Maricopa County Superior Court Judge Randall Warner,
Oral argument having been requested,
IT IS ORDERED setting oral argument on (1) Defendants’ February 1, 2016 Joint Motion to Adopt Master’s Report as the Court’s Findings of Fact and to Dismiss Count One of the Complaint; (2) Plaintiff’s February 3, 2016 Motion to Modify the Master’s Final Report Pursuant to Rule 53(h); and (3) Defendants Robert Stump and Arizona Corporation Commission’s February 2, 2016 Rule 12(b)(6) Motion to Dismiss for March 8, 2016 at 8:30 a.m. in this division.It has been more than a year since Scott Peterson, director of the Checks and Balances Project, first filed the public records request seeking access to the thousands of taxpayer-funded text messages (Corporation Commissioner) Trash Burner Bob Stump exchanged with Special Interest functionaries who conduct business before the Arizona Corporation Commission.
Over the course of the year, the Corp Comm and Commissioner Stump have vigorously stonewalled and obscured the issues, claiming that the (thousands of) messages in question were ALL personal in nature. Those messages were/are on phones that allegedly had been destroyed. Therefore, they claim, none are subject to disclosure according to Arizona Public Record Law.
Checks and Balances Project issued a statement containing the following on Monday:
Lawyers for the Arizona Corporation Commission (ACC) will try tomorrow to have a judge help the ACC continue blocking public access to thousands of work-related text messages on Bob Stump’s taxpayer-funded cell phone. But Stump and Commission lawyers seem to have already lost in the court of public opinion, if a new poll by Pulse Opinion Research is any indication.The survey of 500 likely Arizona voters March 1-3, 2016 found:
- An overwhelming 79% majority want Stump’s text messages released.
- A 56% majority says they do not believe Stump’s claims that the thousands of messages on his taxpayer-funded cell phone were of a personal nature.
- Stump has a negative approval rating of 40% disapprove vs. 28% approve.
- And, Stump’s conduct and the ACC staff’s actions to fend off inquiries into him seem to have hardened public views beyond Stump. Majorities of over 80% think it’s both wrong for utilities to spend money on behalf of Commissioners’ political campaigns, and that Commissioners have been somewhat or heavily influenced by the state’s utilities.
“For 15 months, Bob Stump has evaded basic public records requests. Instead, he and Commission staff have hired high-priced lawyers and PR people with no-bid contracts to fend off public accountability,” said Scott Peterson, Executive Director of the Checks and Balances Project, which commissioned the poll. “It’s pretty clear that Arizonans are unhappy with their conduct.”
Few people believe Stump’s assertion that thousands of text messages to APS lobbyists and campaign operatives were just for personal purposes – like arranging a date to the symphony.
“Unfortunately, the Commission is still fighting public access to public records in court – all at taxpayer expense. It’s unfortunate we have to go to court to get basic records from a taxpayer-funded cell phone, but Stump and the Commission’s senior staff have left us little choice,” said Peterson. “They don't seem to understand that accountability and transparency are part of public governance.”
Context for the Hearing
Several parts of the events of the last 15 months are relevant heading into tomorrow’s court hearing:
- Public records we obtained show that in the months leading up to Arizona’s primary election on August 26, 2014, Stump was in extensive contact with many players in the dark money election scheme that helped elect pro-Arizona Public Service candidates.
- Arizona Public Service is widely believed to have funded much of that effort.
- Text logs show that Commissioner Stump exchanged more than 20,000 text messages during a 10-month period. Many were with public officials, candidates for public office, or other people with business before the Commission.
- The metadata from the text messages suggests Stump not only was in contact with, but might also have illegally coordinated the 2014 election with APS’ Barbara Lockwood; and Scot Mussi, the head of the dark money electoral group, Arizona Free Enterprise Club.
- On July 22, 2015, Arizona Attorney General Mark Brnovich seized Stump’s phone from a safe at the ACC. He claimed it was to further his investigation into a whistleblower’s charges against Stump and former Chairman Gary Pierce.
- Stump’s stories about the number and fate of his taxpayer-funded cell phones have changed and have been contradicted by ACC records.
- We are only seeking to review 3,598 work-related text messages from Mr. Stump’s iPhone3, which he claims to have thrown away.
- In December 2015, C&BP Attorney Dan Barr provided Judge David Cole a spreadsheet with the metadata – dates, times, durations, sender and receiver – of the 3,598 text messages in question.
- Acting in the role of “special master,” Judge Cole issued a two-paragraph report in late January 2016 that found, “none of the text messages” that the Attorney General’s investigators downloaded from Stump’s iPhone6 are “subject to production.”
- Unfortunately, the two-paragraph report didn’t address a number of issues, such as whether he reviewed any of the 3,598 text messages we are seeking.
- If Judge Cole did review the 3,598 text messages, his report does not say how many nor does it explain his reasoning for withholding any of them.
- We know Commissioner Stump texted with APS lobbyist Barbara Lockwood 56 times and 1,786 times with Lon Huber, a consultant to the state’s ratepayer advocate RUCO, among many other players in the scheme.
- Yet, according to Special Master Cole, he did not receive any of these messages to review.
- Cole told the Arizona Republic that the text messages he examined “either weren’t a match” to the more than 3,500 on our list “or they were with a person that was not one of the targets.”
- “There are at least four big concerns about Judge Cole’s two-paragraph report. Did the Attorney General give him the roughly 3,500 text messages Stump exchanged with players in the dark money electoral scheme? If so, did Judge Cole review them? If he did review them, how could none of them pertain to public business? Which, if any, of the latest forensic technologies were used to retrieve the ‘deleted’ messages?” asked Peterson.
Not only will counsel for C&BP argue the incompleteness of the report, but it will also offer to pay all costs connected with a proposed analysis by forensic analyst Bryan Neumeister to, with court and Attorney General's Office supervision, determine if the extraction previously conducted by a Pinal County Sheriff's Department analyst obtained all of the text messages on the devices in question.
As I see it, if the judge values the integrity of our constitutional state government and utility regulatory systems, he will direct the parties to conduct the additional review. The people of Arizona both demand it and deserve it.