Redistricting -- May 2nd meeting recap

Well, apparently the heartiest discussion in this week's Arizona Independent Redistricting Commission meeting took place during executive session, in contrast to last week's meeting.

Of course, I'm only guessing, since I wasn't privy to that discussion.

However, prior to executive session, there was mention of a memo from AIRC director Ray Bladine about invoices from the attorneys hired to represent the individual commission members. Apparently, John Munger, who represented Rick Stertz in the Harris case, billed the AIRC for $89,936. Bladine had estimated legal fees for each of the attorneys representing individual commissioners at $20,600.

Not only was the amount nearly 4.5 times the budgeted amount, but he apparently included  "expenditures to investigate Chair Mathis [which] do not seem appropriate for the approved scope of work," according to a memo Bladine wrote.

After the executive session, McNulty made a motion to direct counsel to research ways the AIRC could lawfully make certain executive session transcripts public (without violating Open Meeting Law provisions for confidentiality of executive sessions). At issue was discussions that had taken place in June 2011 about procurement of the mapping consultant.

The motion passed 5-0. All five commissioners agreed that since the topic was subject of quite a bit of testimony in open court in March, they'd be better off just making the entire transcripts of those discussions public. Any decisions on how to proceed with such disclosures, once counsel has set forth the options, would be subject to an AIRC vote in a subsequent open meeting.

After that vote, Commissioner Freeman moved to approve separate counsel for each commissioner. Discussion that followed was quite a bit more contentious. Last week, commissioners seemed a bit more inclined to approve such a motion, subject to considering the possible costs. However, revelation this week of Munger's really high invoice (he wasn't the only one who significantly exceeded estimates, but his was the most extreme) coupled with the audacity he showed by "investigating Chair Mathis" really put a damper on those inclinations.

Digressing back to last week's discussion, Stertz had sent a letter to Bladine on April 3 articulating his indignation at the way AIRC counsel treated him during the trial, as a hostile witness. One revelation during the meeting last week, which counsel apparently had preferred to discuss in executive session, was that Joe Kanefield had written a response to Stertz.

Since one of the points counsel had made during last week's meeting is that privileged communications are subject to the clients' discretion as to whether to waive attorney/client privilege, I tried to obtain a copy of that response. When AIRC staff did not give me a straight answer on why they were not providing me with a copy, I asked Stertz directly. He also was non-committal, essentially indicating that he wasn't sure that even though it might (and he did use the word "might") be OK with him, it might not be OK with the author.

It turns out that the client, in this instance, was and is the AIRC, not Stertz. So, Stertz was reasonably reticent to release the response to me. Kanefield told me after the (May 2nd) meeting adjourned that the commission had not waived privilege and therefore he couldn't authorize releasing the response memo.

Nevertheless, reading the transcript of last week's meeting, Kanefield -- beginning on page 40 and going to page 48 -- laid out what was in the memo. In essence, that since the Leach case (in Maricopa County Superior Court) does not seek any relief or sanctions against any individual commissioners, it is neither necessary nor appropriate to incur the added expense of separate counsel for each of the commissioners. Kanefield was uncharacteristically (for an attorney, in general) diplomatic in how he presented the information, given that Stertz had been understandably offended by the nature of the cross-examination he was subjected to.

However, the bottom line is that neither Ballard Spahr (Kanefield's firm) nor Osborne Maledon (O'Grady's) will withdraw as counsel for individual commissioners unless directed by AIRC vote.

In this situation, on Freeman's motion, the AIRC declined to authorize separate counsel for each commissioner. The vote was 2-3, with Freeman and Stertz voting "aye."

With a bit of reluctance, I need to mention that there is a pronounced irony in Freeman's vote on this motion. At the beginning of last week's meeting, Freeman emphatically declared himself to be the guardian and steward of the taxpayer funds entrusted to the commission:

As a commissioner, I think I have a responsibility to look over the shoulder of the staff and the experts and the lawyers that the Commission retains to make sure that everyone is doing their job, that we are spending State money wisely. And that entails, if I request, getting access to records and communications among staff with the experts, with the lawyers.

Later in the same speech, Freeman said:

The Commission's lawyer have sought to undermine positions commissioners have taken. They have made arguments to the court that are contrary to the positions that commissioners have taken in hearings and in their depositions.

For additional irony, in this week's meeting, the point was clearly made that if not for the federal court refusing to allow commissioners to invoke legislative privilege, the additional legal costs associated with the separate counsel (for any of them) would have been unnecessary. According to an April 24, 2013 AIRC memo to the commissioners, invoices received up to that date show $220,586 billed for that individual representation. In fact, commissioners Freeman and Stertz wanted to waive legislative privilege.


So, while Freeman is prone to pontificate about wise use of taxpayer money, and about AIRC counsel undermining the position of two of the commissioners, it seems the reality is that he is the one who has put a great deal of effort into undermining the overall decisions (lawful commission votes) of the AIRC.  That undermining effort seems also to have a high correlation to the additional expenditure of taxpayer funds for legal costs.