by Yvonne Wingett, Michael Kiefer and JJ Hensley
- May. 13, 2010 12:00 AM
The Arizona Republic
The Maricopa County Board of Supervisors on Wednesday ordered Sheriff Joe Arpaio to attend a contempt hearing May 24 to explain his refusal to hand over financial documents the board demanded through a subpoena.
The board's unanimous decision to force Arpaio and his chief financial officer, Loretta Barkell, to testify is unprecedented. Never before has the county used its subpoena powers to require another elected county official to appear before the board.
The supervisors believe state statutes allow them to hold Arpaio in contempt if they aren't satisfied with the response.
If the board were to try, however, it would certainly be tested in court.
Arpaio wouldn't comment Wednesday; sheriff's spokeswoman Lisa Allen would say only that the office is "conferring with our attorneys."
The Arizona Republic talked with several legal experts, including attorneys, judges and law professors, to determine how the latest battle between the board and Arpaio could play out.
Question: Why did the board take this approach to get the financial records?
Answer: The board ordered the contempt hearing after sheriff's officials did not respond to attempts by Deputy County Manager Sandi Wilson to get answers to questions she had about possible financial mismanagement.
In a March 30 letter to Chief Deputy Dave Hendershott and Barkell, Wilson said she was concerned that restricted funds may have been misspent. Sheriff's officials did not respond.
The board issued a subpoena April 27 and gave Arpaio until May 7 to turn over documents. The request was for items including detailed credit-card transactions, work assignments and lists of detainees or defendants extradited by the office and all bank accounts dating back to Jan. 1, 2005.
When the sheriff missed that deadline, the board ordered him to a contempt hearing.
Asked why the county didn't submit a public-records request to the Sheriff's Office, county spokeswoman Cari Gerchick said Wilson's memos satisfied the county's internal information request: "It seems silly to have to use the public-records vehicle to get financial data when we're in the midst of budgeting, and this is the normal process for getting budgeting documents," she said.
Q: Why does the board want the files?
A: County officials believe the Sheriff's Office could be mismanaging or misspending public money. Board attorney Tom Irvine and Deputy Budget Director Lee Ann Bohn on Wednesday told the board the records will help them better understand how sheriff's officials have spent money. They believe Arpaio may have misspent or mismanaged restricted detention funds to pay for personnel.
Bohn indicated that Arpaio also kept a "shadow" bank account. Although it's allowed by county policy, she said the details should be made public.
Q: What gives the board the authority to issue subpoenas?
A: As the county's governing board, the five supervisors control almost all county finances.
Arizona Revised Statute 11-218 gives county boards and their chairmen the authority to issue subpoenas, that is, legal orders to produce documents related to county business, or to order witnesses to appear at a hearing.
What makes the board different from a court is that courts have extensive ethical rules and case law defining what judges or lawyers can or can't do regarding conflict of interest.
Two of the supervisors have been investigated by the Sheriff's Office, and the board has a long history of litigation with the sheriff. Such history would conflict a judge or attorney out of trying a case.
Since this type of procedure is untested, legal experts said there may not be precedent that considers conflict of interest in holding a contempt hearing.
Q: Has the board ever issued subpoenas or held contempt hearings?
A: Last year, the Board of Supervisors subpoenaed financial records from County Treasurer Charles "Hos" Hoskins, who immediately turned over the records. But the board has not held a contempt hearing, County Manager David Smith said. "This is already taking it a step further," he said. "I don't know what to expect."
Q: What is Arpaio's potential defense?
A: Arpaio and Barkell could attend the hearing. They also could turn over the records or negotiate a compromise.
Arpaio could file a special action, which is a sort of fast-track appeal, in Superior Court questioning whether the board is acting in excess of its authority. And if they are held in contempt of the board, they also could appeal.
Q: What happens if Arpaio is held in contempt?
A. Some experts said a trial of sorts would have to be held in order to find him in contempt. If that happens, he could be jailed until he agrees to turn over the requested documents. In court parlance, a judge will state that the person held in contempt "holds the keys to his jail cell," meaning that if he complies with the order, he is released.
Short of contempt, the board could narrow the scope of its request for documents, or if dissatisfied, it could take a variety of actions. For example, the board could turn off the county credit cards of certain sheriff's employees, restrict travel, or ask Arpaio to turn over all of his books to an auditor.