I’m getting pretty tired of Ed Rheinheimer, the Cochise County, Arizona’s County Attorney, shirking his job.
I first notice Rheinheimer’s deputy county attorneys shirking their job in advising county agencies at public meetings.
- Rheinheimer’s attorneys assigned to advise agencies at public meeting leave during meetings, so that agencies flounder without legal guidance.
- Rheinheimer’s attorneys ignore or evade questions asked by public agencies, or by the public at agency meetings.
- Rheinheimer’s attorneys advise agencies to violated the law to advance agenda items that the attorneys approve of.
- Rheinheimer’s attorneys give incompetent advice.
- And Rheinheimer ignores complaints about his minions.
I thought to myself, Why put up with this guy? If it’s too much trouble for him to do his job, and insist that his flunkies do their jobs, then let’s send him back to private life, where he can work for a living, like the taxpayers who pay his salary.
Then I discovered another website, at http://www.recalledr.org It has a whole different slant on Rheinheimer & his office not prosecuting some criminal cases. For a list of screwed-up conduct by Rheinheimer in criminal cases, go to that site.
Meanwhile, here are two examples of one of Rheinheimer’s staff totally blowing off his professional responsibilities, and Rheinheimer refusing to acknowledge that a problem exists.
I’ve left the excerpt in the typeface in which it appears on another website,
I. Deputy County Attorney Britt Hanson has at least twice advised the Cochise County Planning & Zoning Commission to violate the law during its proceedings.
For convenience, here is a link to the Commission’s Bylaws:
To get pages 2-6, change the number before “.jpg” from 2-6.
II. A Commission meeting on January 11, 2006
This meeting included an item which was initiated by the Commission, Docket R-04-03A, “proposing: 1) to consider several options for the application of the currently adopted Cochise County Building Safety Code . . . surrounding Pomerene, Benson, Whetstone, Sierra Vista, Hereford, Palominas and Bisbee immediately, to the Phase 2 area on April 1, 2006 and finally to the Phase 3 area on April 1, 2007; 2) to amend the current Building Code Fee Schedule . . . ; 3) to amend Section 1704 of the Zoning Regulations raising the value threshold requirement for building/use permits for any repairs or improvements from $500 to $1,000 . . . ; and 4) to . . . address the application of the Cochise County Building Safety Code to rural zoned areas.”
After public discussion of Item 4, the Commission specifically stated that the public hearing was over. After a preliminary vote, the Commission voted on whether to send the docket to the Board Of Supervisors for action. This tied, 4-4.
The 4-4 vote caused some discussion among the county personnel present, including Mr. Vlahovich (a P&Z Department staffer), Mr. Hanson (the deputy county attorney giving legal advice to the Commission during this meeting), and Mr. Martzke (Chairman of the Commission):
â€œVlahovich or Hanson: You can have a second motion but a tie can go to the Board. As just a tie.
â€œMartzke: What is happening is that a tie is being forwarded to the Board of Supervisors for their final action. Their hearing will be on Feb. 7 on or after 9 a.m. in this room.”
Martzke was applying Bylaw III.10.B.1, which says that for dockets initiated by the public, a tie means that â€œThe docket is forwarded to the Board with a report of the tie vote and a statement that this means the docket failed.â€
However, as noted above, this docket was initiated not by the public but by the Commission, so the applicable Bylaw was not III.10.B.1 but III.10.B.2, under which “A tie vote means that the docket fails. The docket dies at this level and is not be [sic] forwarded to the Board. (If it ties at the Commission level it can no longer be considered a Commission generated docket.)â€
In short, Martzke, following a bylaw which did not apply, announced that he would violate the bylaw which did apply.
After Martzke’s announcement, the meeting moved on: â€œNext item is item 5. This is not a public hearing. It is Docket SU-05-19 . . . .” Then Martzke called a break, and all the members of the public left. After the meeting resumed, Martzke asked attorney Hanson for advice on what to do with the 4-4 vote.
Hanson’s full advice was: “Three options to think about and I’m going to recommend only two of those. One would be to reopen, reconsider the matter, look for another motion and vote on it actively. I would recommend against that since the public was given the impression that the matter was done with for tonight. So that would be a bad option. Another option would be to let the matter rest as it is, and if the Commission wanted to reconsider one of the options that was presented to you tonight . . . then you could go through the whole process of initiating again, go through the notification process. A third option that I think would be acceptable would be, to reopen just for the purpose of tabling it for another day so you wouldn’t have to go through the whole notification process again. That I think would do justice to the Open Meeting Laws, the people would certainly have the opportunity to hear about it again, attend, and have their voices heard, if the Commission so chose. It could be that the Commission would say all the people have been heard here tonight, you told us what you are thinking, we really don’t need to hear it again. Or you could let them do it, whichever way you prefer. But I think the tabling option is acceptable, and we would be within the spirit of the Open Meeting Laws if the Commission wanted to do that, or let it drop.”
Hansonâ€™s third option was what the Commission accepted. This option is taken from Bylaw III.10.B.1, the option which applies to dockets initiated by the public. That is, to cure the problem caused by following the wrong bylaw, Hanson’s recommendation was to follow the same wrong bylaw again. The Commission voted to accept his advice.
In fact, merely picking up the defeated item and putting it back on the agenda violated the Open Meeting Law which Hanson mentioned. At a county meeting in the summer of 2006, Hanson lectured an audience including all three Supervisors, two Commission members, and various Department personnel that once an item is defeated, it is dead, and nothing more can be done with it. A procedure exists pursuant to a motion to reconsider, which was not made at this meeting; but the public got no notice at all that the item would be voted on again after the public left.
I raised this issue at the time with Hanson’s superior, but did not obtain any response to the issues.
III. A Commission meeting on November 8, 2006.
This meeting included Docket R-06-06, proposing a Sierra Vista Subwatershed “Overlay District.” Like the item discussed in Section II above, this item was initiated by the Commission.
The Commission had defeated R-06-06 at its October meeting, by a tie vote. As in Section II above, Bylaw III.10.B.2 applied: “A tie vote means that the docket fails. The docket dies at this level and is not be [sic] forwarded to the Board. (If it ties at the Commission level it can no longer be considered a Commission generated docket.)â€
However, the Department put R-06-06 back on the agenda for the next Commission meeting after it was defeated. This time, Judy Anderson, head of the Planning & Zoning Department, was the applicant. I emailed her asking what her authority was for reviving a dead item. She didn’t answer, but her deputy Mark Apel said that her decision was made at a meeting of P&Z staffers just after 06-06 was defeated, that there is no written application because it would be silly for the Department to apply to itself, and that Anderson had the right to apply under Regulation 2204 like any “interested person.”
Each of Apel’s three reasons raises legal questions, which I raised at the November 8 meeting. Also, weeks before that meeting, I asked attorney Hanson to verify what Apel said about Anderson’s authority under Regulation 2204. Hanson said he wouldn’t give me advice, though I was asking only for facts, not advice. Hanson also wouldn’t provide me any facts; he said he doesn’t like how I would use them. In other words, Hanson, an attorney on the public payroll, has a political test for providing services to the public. I emailed Hanson’s boss, the elected county attorney, to complain about this, but got no answer.
At the November 8 meeting, when the public was allowed to speak about R-06-06, I raised the above questions. In addition, I raised another item which only came up at the meeting itself.
When R-06-06 came up on the agenda, Commissioner Basnar moved to “re-initiate” it. Parliamentary procedure does not include a motion to “re-initiate,” and if such a motion existed, it sounds as if it would mean to start from the beginning, which the discussion showed was not what Basnar had in mind. At a break in the meeting, I asked him if he had meant to move to reconsider; he moved away and mumbled inaudibly. Basnar apparently meant to move to reconsider, and that’s how Chairman Martzke treated his motion.
A motion to reconsider can only be made by somebody who voted on the winning side; somebody who voted on the losing side cannot move to reconsider. Basnar voted on the losing side when 06-06 was defeated in October, so could not make a motion to reconsider. Nonetheless, Chairman Martzke accepted the motion, and attorney Hanson said nothing about the error. The motion obtained a second.
Later in the meeting, when the public was allowed to speak, I pointed out, in addition to the problems with the reasons given by Department staffer Apel, that a motion had been made by somebody who was ineligible to make it. After public input was over, Martzke asked attorney Hanson to advise the Commission on my questions. Hanson addressed only the question of Basnar’s lack of standing to move to reconsider, and Hanson stated only that P&Z regulations allow a motion to reconsider. Hanson evaded the question of who could make such a motion, and Martzke did not require an answer to that question. The Commission proceeded in violation of its own rules.
During a break in the meeting, I discussed the problem with Martzke, who made an argument which Hanson did not make that night. Martzke noted that Basnar’s motion was seconded by Commissioner Brofer, who voted on the winning side at the prior meeting. The implication was that accepting the motion out of order was harmless error, because the motion was seconded by a person who could have made it. However, Martzke’s argument is not supported by any parliamentary authority; and as a practical matter, Martzke’s argument is basically an appeal to “go along to get along.” Over long years of serving on the Commission, the Commissioners have learned that their rules will be bent to achieve political purposes, so that it will do a dissenter no good to insist on his rights under the rules. The fact that, in this system, Brofer “went along,” is no indication of what Brofer would do in a system which respected his rights.
After Hanson finished his non-response to Martzke, and sat down, I went over and asked him why he hadn’t answered my actual question. He said he was busy listening to the Commission, and would answer me later. Later, in the lobby, I asked him again. He did not dispute what the rules said, he stated that the Commission was certain to approve 06-06, and therefore . . . he trailed off. Hanson’s implication was that if the Commission wants a result, he is not going to obstruct the Commission with quibbles about the law. I asked Hanson if the law didn’t come first? He said that he had no more time, and left the building. When I saw him having more conversations outside, I asked him more questions. The resulting exchanges did not change his mind, and he left without waiting for the meeting to resume.
Attorney Hanson has at least twice in 2006, on major issues, advised the Commission to take action that Hanson knew, or should have known, violated the law. Hanson is neglecting his duty as an attorney.
On each occasion, a complaint to Hanson’s superior has gone unanswered.