November 8, 2011
Host: Ted Simons
Andrew Thomas Ethics Hearing
- Testimony has ended in the ethics hearing for former Maricopa County Attorney Andrew Thomas. Legal Ethics attorney Karen Clark offers her expert analysis of the hearing.
- Karen Clark - Legal Ethics attorney
| Keywords: trial
Ted Simons: Testimony in the ethics hearing for former Maricopa County attorney Andrew Thomas ended last week, but conclusion to the case may still be months away. Here to share her observations about the hearing is Karen Clark. She's a former ethics counsel for the state bar of Arizona, she teaches legal ethics at ASU's O'Connor College of Law and in her private practice she specializes in representing lawyers and judges in disciplinary matters. Good to see you again. Thanks for joining us.
Karen Clark: Thank you.
Ted Simons: General thoughts on the hearings. What did you hear, what did you expect to hear? Any surprises?
Karen Clark: There weren't I don't think any huge surprises. That was a case that was painstakingly investigated, hundred-page-plus complaint, and Mr. Thomas stood on the courthouse steps before the hearing many months ago and said that what his position was in his defense. And I think we pretty much saw those things play out in the courtroom.
Ted Simons: Did he defend himself well from what you saw? Or was his defense strong from what you saw?
Karen Clark: Was it strong in the sense of do I think it's going to prevail? I don't think so. I think there was some testimony that's really, really tough for him. I don't think any of us expected him to put on any different defense than what he did. And that defense was, I was doing the people's business, I still believe to this day Mr. Stapley for instance was corrupt and it was my job to root out that corruption. So he didn't acknowledge making any mistakes. The problem for him is if this panel finds that what he did violated the rules, then as their de-- as they're deciding the sanctions, it certainly was inconventional conduct because he's sticking by it.
Ted Simons: Someone suggested if you stick by it you may have made a wrong decision but there's no ulterior motives about which would really get the panel upset. You're saying not necessarily?
Karen Clark: Not necessarily in which sense?
Ted Simons: In the sense of sticking by and being defiant and holding on to your guns being a good thing, maybe you're thinking some contrition would have been wise?
Karen Clark: I don't think it was in his nature to do some kind of about-face and say, oh, gosh, I'm sorry this, was a terrible mistake. I don't think that's in his nature. And I also don't know that it really would have been a good defense for him. His position is right or wrong, this is what I believed at the time, if he tries to change what he believed at the time, he's going to have major problems with all the pretrial statements he made.
Ted Simons: OK. Impact of certain things. Impact of his defines, impact of judges breaking down on the stand. How does that silt with the panel?
Karen Clark: Again, discipline cases are sort of broken into two parts. First the panel’s going to be looking at whether he violated the ethical rules he's been charged with. The second part of it is the sanction. And that's where -- that's why the counsel is asking those questions of all those various lawyers, judges, and elected officials who were victims in this matter, because the injury to the victim is one of the factors that's used, that's real pivotal in deciding what kind of a sanction the attorney is going to get. So that's why that was important.
Ted Simons: Was that the most damaging you think as far as testimony?
Karen Clark: No.
Ted Simons: Oh, really? What was the most damaging?
Karen Clark: Again, that only goes to the sanction and it's only one of four factors the panel would take into account. I think the most damaging thing for Mr. Thomas, a couple of things. One being that some of the people with more experience in these specialized types of cases that they brought, the RICO case, the charges against judge Donohoe, were inside his office and telling him he didn't have a case. Number one. Number two, that then he passed to it an outside prosecutor agency that also thought he didn't have a case, and then he took it back and continued to go forward with it. I think those are the two most damaging pieces of evidence against him.
Ted Simons: What would be the strongest element of the hearing in his favor?
Karen Clark: In his favor? You know, if he messed up the statute of limitations on Stapley, that's sort of a technical defense, isn't it? It doesn't go to the issue of whether Mr. Stapley actually had committed some sort of wrongdoing. You had Ms. Polk testify that she wouldn't have gone forward with those charges and some folks have alleged that they should haven't been charged as felonies, but misdemeanors, but in the bigger picture, if Mr. Thomas's position is that there was corruption here, and we just mishandled how it got charged, that helps his case.
Ted Simons: All right. Lisa Aubuchon, most damaging testimony, most positive element for her. What did you see out there?
Karen Clark: The most damaging testimony was when you saw the independent bar counsel prosecutor taking her through these various pleadings that got filed, one after another, after another, asking did you authorize this, did you sign it, and then what was the basis for making that allegation? Because Mr. Thomas wasn't signing these things, Ms. Aubuchon was. And her answers were, ever less than convincing.
Ted Simons: Even so, she was according to some observers, even more defiant and even more sure of herself than Andrew Thomas was. Again, how does that play with a panel?
Karen Clark: Well, if they find the violations, it doesn't play well. It doesn't play well. Because the whole purpose of lawyer discipline, and that's important to remember, is not to punish the attorney, but to protect the public. So if the panel finds these were violations, and that this respondent lawyer doesn't understand that what they were doing was wrong, that's a harm -- a threat to the public. And that requires a greater sanction.
Ted Simons: We talked about this before, real quickly, how unusual is this to see prosecutors facing this kind of discipline?
Karen Clark: Well, as we talked about last time, there is a precedent for it, unfortunately in Arizona a case that I was a bar counsel on, where the chief deputy criminal attorney of Pima county was disbarred. It wasn't similar factually as far as what he had done, but unfortunately we do have that precedent before. However, that matter wasn't involving three prosecutors. It wasn't involving an elected county attorney. He was the chief deputy. It wasn't live webcast on the web, and it was in a case involving one particular murder that had happened, and not this years-long battle between one elected official and other elected officials being the board of supervisors.
Ted Simons: With everything you've seen, with everything you've heard, would you be surprised if Andrew Thomas and Lisa Aubuchon were disbarred?
Karen Clark: No.
Ted Simons: Would you be surprised if they weren't disbarred?
Karen Clark: At this point I think I would be surprised. Now, the panel has to weigh a lot of things in coming to the sanction, and I don't have everything in front of me. There's been written closing arguments have been requested, those will be lengthy documents talking not only about the facts and the rule violations, but also the other side of it which is what should the sanction be. What is the duty that was violated here, what was the lawyer's mental state, what was the injury, and then these aggravating and mitigating factors, and there are many of those. I'm not privy to those closing arguments, and you need to take a close look at those. But again, I think if you find the violations, there's such serious harm here, I would be surprised not to see a very serious sanction.
Ted Simons: And it sounds like early next year we should get something, both sides can appeal within 10 days and it could go on and on and on.
Karen Clark: Not on and on. It goes on to the court and there will be a timely review of it. You have under the new rules that took effect January 1st you have a right of direct appeal to the Supreme Court. They can issue a memorandum decision, affirming the panel's decision, they can issue an order, or they can take jurisdiction of the case and order oral arguments, and then we start with them.
Ted Simons: Very good. Always good to have you here. Thanks for joining us.
Karen Clark: You're welcome. Thank you.
ASU Spirit of Enterprise Awards
- Gary Naumann, director of the Spirit of Enterprise Center for ASU’s W.P. Carey School of Business, talks about the 15th annual Spirit of Enterprise Awards honoring some of Arizona’s top entrepreneurs.
- Gary Naumann - Director, Spirit of Enterprise Center, ASU W.P Carey School of Business
| Keywords: ASU
Ted Simons: Earlier today ASU's W.P. Carey School of Business honored some of adds's top companies at the school's annual spirit of enterprise awards. Here to tell us what sets these businesses apart in this tough economic climate is Gary Naumann, he's director of the spirit of enterprise center at ASU's W.P. Carey School of Business. Good to have you here. Thanks for joining us.
Gary Naumann: Thank you. Appreciate it.
Ted Simons: Spirit of enterprise awards, what are we talking about?
Gary Naumann: 10 companies that have made it through a very long process, where we start almost a year ago and we take applications, we get nominees, take indications, anywhere -- applications, they have to decide are they going through this process of actually filling out the application, while they're trying to run their businesses, and answering these ESSAY questions, what are your core strategies, what drives your business, what have you common terms of customer service? Lou do you treat your employees? How do you give back to the community? We put them throughout rigors and at the end of that rigor, we come up with 40, 50 applications and out of those we start deciding who's going to make it to the 10 finalists of spirit enterprise finalists.
Ted Simons: Some of your finalists, everything from an air ambulance to Ollie the trolley to a fiber optic engineering firm. All sorts of things.
Gary Naumann: And we don't go for specific categories. We don't say, give us one of these and two of these. We want -- we try to decide who of that group represent our 10 best finalists and out of that we carve it down to five winners.
Ted Simons: You mentioned some of the essay questions, but what is really being recognized here?
Gary Naumann: It's one of our tag lines if you will, celebrating ethics, energy, and excellence in entrepreneurship. It's not just a series of parameters, how many people do you have, or how fast have you grown, or what's the year over year growth in profits? We're trying to find great stories. That's what the spirit of enterprise is all B give us some great stories that we can use to profile ethics, energy, and excellence in entrepreneurship.
Ted Simons: Obviously there are still great stories, but I'm guessing some are harder to find because of the economy. Talk about the challenges right now, especially for small businesses, in Arizona, around the country, some of the things, some of the hoops and hurdles folks are having to go through.
Gary Naumann: What you find with a lot of small businesses is really time is such a constraint. They don't have the luxury of saying, I think I'll go out and think about my business for the next couple months and then take action on that. Most small businesses are in the position of saying, I need to work in my business every day so I don't have as much time to work on my business. Obviously one of the important things for them to do is step back and say, what I do need to do differently today than I did six months or a year or two years ago, what's changed? Do I have a heightened awareness of what's going on? How do I move to the next step? That's hard to do, especially when you're putting in the long hours, one of the things I tell my students in my entrepreneurship courses, the beauty of entrepreneurship is you decide which 80 hours of the week you get to work. And they say, OK, I get it.
Ted Simons: Is Arizona different? Obviously we got hit hard --
Gary Naumann: We got hit very hard.
Ted Simons: Small business --
Gary Naumann: A little tougher here, because we are in the position of, we've had some very good years. And now we've had four going on five pretty tough years, and so not all parts of the country went up as fast as we did. We had a period of great growth, and all of a sudden -- so to the faster you go the harder it is when you slow down. That's what we're looking at here. We've got special challenges, but it will be back.
Ted Simons: Last question, biggest reason a small business succeeds, biggest reason a small business fails. You got about a minute.
Gary Naumann: If I had to say the biggest reason business is people actually understand and know their business. You can't not pay attention to that detail. The biggest reason they succeed is they've chosen something they're very passionate about, and it's no holds barred. Other going after it every day, what can I do next to make this thing grow?
Ted Simons: And failure --
Gary Naumann: Failure is people that say, people that say I'm waiting for something to happen for me. You can't wait. Snob going to come along and bail you out. You've got to say, what am I going to do tomorrow to fix this? If you don't, you're going to be gone.
Ted Simons: Gary, it's good to have you here.
Gary Naumann: Thank you very much, Ted. Pleasure.
Ted Simons: Tomorrow on "Horizon," election day results and analysis. We'll look at the Phoenix mayoral race, and the historic recall election involving senate president Russell Pearce. That's Wednesday at 7:00 on "Horizon."
Ted Simons: If you want to check us out on the web, www.azpbs.org/horizon.
Ted Simons: That is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great evening.
IRC Chairwoman Ouster
- Governor Brewer’s General Counsel Joe Sciarrotta, Jr. explains why the Governor removed Colleen Mathis from the Independent Redistricting Commission and the Governor’s position on an IRC lawsuit challenging Mathis’ ouster.
- Joe Sciarrotta, Jr. - General Counsel, Governor Brewer
| Keywords: government
Ted Simons: Good evening, and welcome to "Horizon." I'm Ted Simons.
Ted Simons: The Arizona Supreme Court was asked to decide if ousted independent redistricting commission chairwoman Colleen Mathis should remain on the IRC while her removal is challenged in court. Today the high court ruled she cannot remain on the commission while the legal process moves forward. Here to talk about all this is governor Jan Brewer's general counsel, Joe Sciarrotta. Thoughts on today's ruling?
Joe Sciarrotta: We're pleased, but it's a step in the process, our response to the petition for special action to the Supreme Court will be filed by Friday at 5:00 p.m., and the court has scheduled oral argument for next Thursday the 17th at 2:00 p.m. We still have a lot of work to do this week.
Ted Simons: You, correct me if I'm wrong, you don't think the high court should have been involved in the first place.
Joe Sciarrotta: Respectfully yes. That is the case. There's a legal term for it, it's called -- this is a nonjusticiable matter. What that means, the Supreme Court has said is the strongest in the United States of America, this decision was entrusted to the governor, and then there is an important but exclusive check on the governor's authority and that is a two-thirds concurrence with the state senate. The governor removed Ms. mathis, the state senate has concurred, that's where the decision begins and ends.
Ted Simons: As far as the governor wanting to remove Colleen Mathis and a senate going ahead with the process, why was it so important to get that woman off that commission?
Joe Sciarrotta: Well, this was a saga that did not just happen in the past few weeks. This has been going on for months. There have been a lot of people protesting, upset from the very beginning. Each commissioner has a constitutional duty. They're to operate independently, honestly, and impartially, and the duty also says they have an obligation to conduct the IRC business in a way that upholds the integrity, upholds public confidence and the integrity of the redistricting process. Throughout a lot of questions have come up, the process wasn't being followed. Things were being done in secret. Votes were being lined up behind the scenes before vendors were even interviewed for positions. And then a map came out that seemed to be gerrymandered, and people were complaining the process, the constitution requirements weren't followed. So the governor had a constitutional duty and responsibility to enquire as to these allegations that have been gathering for months. And according to the constitution, she has to provide written notice and give an opportunity to respond. And she did that on October 26th. She listed out concerns to all of the commissioners, because perhaps all of the commissioner were implicated, and asked for specific responses to specific questions, and she got that response from all the commissioners on October 31st. And in receiving that, it was clear that based on inconsistency and some of their responses, the fact that two of the commissioners had testified under oath before the attorney general previously where other commissioners refused to answer questions, it was the governor's judgment that substantial neglect of duty and gross misconduct had occurred.
Ted Simons: Critics are looking at this and saying, there were rumors, there were questions, there were people upset, there were concerns. It seems as if, it looks as if that, but there was no conclusive proof. What was the evidence of gross misconduct and substantial neglect of duty to warrant the removal of not only this commissioner, but an attempt to remove two others.
Joe Sciarrotta: Sure. Again, you're imposing courtroom and legal standards of evidence and procedure which don't apply. This is a constitutional removal process that is committed to the governor, and then to the senate. And the procedure is very limited in the constitution, and that's only what the court can look at. Did the governor and the senate follow procedure. The governor gave notice, got a response and decided to remove. And in those responses, some -- one, which was an inch thick, based on various testimony that was provided, there was evidence that the obligation to conduct meetings in public, to be transparent, to be honest and impartial and independent, wasn't occurring. Votes were being lined up, I think an important fact is the mapping consultant that was hired, some say very left leaning, very partisan, in a process that is supposed to not be partisan, Ms. Mathis was lining up votes before other vendors were even interviewed. So there was no public confidence that the governor believed in the integrity of the redistricting process at this time.
Ted Simons: And yet those on the other side are saying that she never had due process, she was never presented with the evidence, she was never allowed to test the evidence, the evidence was never presented for the public to see. That again, there was no due process, and I understand this is political process, so maybe that doesn't necessarily apply, should it apply? When you're removing a commission head?
Joe Sciarrotta: The Arizona Supreme Court has addressed this, and it came up in governor Mecham's impeachment proceedings. The Arizona Supreme Court twice specifically said in removal proceedings, constitutional removing proceedings, life, liberty, and property, which is the due process standard, is not implicated, and office holder does not have a vested right in an office, it belongs to the public, it's the public trust, and it's not a criminal proceeding. So they clearly said the state and federal due process provisions of the constitutions do not apply.
Ted Simons: Should they apply?
Joe Sciarrotta: I think there was due process. The process is put forth in the constitution. The process that is due, the commissioner was to receive written notice, she got that. She was given an opportunity to respond. That happened. And the governor put forth a letter explaining that decision. So it did happen.
Ted Simons: But --
Joe Sciarrotta: Based on the constitutional provision that simply indicated here.
Ted Simons: That would be different, though, with actually presenting evidence and allowing that evidence to be tested in some way.
Joe Sciarrotta: That's why this matter is what's called nonjusticiable. It's not for the court to second guess or put courtroom procedures in place. It is left to the governor and the state senate based on the provisions in the constitution. Same arguments were made by governor meekham. My due process rights, I don't have enough time, I don't know what the charges are, and the Arizona Supreme Court said that just does not apply.
Ted Simons: There are some concerns coming from those who support the commissioner and oppose the move by the governor and the senate that this is a lot of hubbub over draft maps. That this isn't even the final process in this process. That these things aren't even finalized yet and already a commissioner head is being removed and a couple of other commissioners are being targeted. Why not wait until a final map is approved and then go to court, why not go to court first to get her removed as opposed to a process that seems to have a lot of folks upset?
Joe Sciarrotta: I want to take issue with your question, nobody's -- no additional commissioners are being targeted. The governor has made her decision, there will continue to make sure the process is followed. But the commissioner that has been removed, that's the decision the governor made. I don't want there to be some --
Ted Simons: But she did target the other democrats. She said the report were she wanted the other democrats on the commission removed.
Joe Sciarrotta: She sent letters to all of the commissioner and got responses, and I think she was a bit concerned they were involved in some of the actions that led to Ms. Mathis's removal. But the governor decided the buck stops with the leader, the chair. The person in control. Because what happened is, redistricting has devolved into really an independent redistricting czar. One person controls the process and that is independent, or the alleged independent. And that's why it's so important. The hubbub is not hubbub, the constitution specifically says the process has to be followed, here's the process. And the duty of the commissioner is to uphold confidence in the integrity of the system. If you go around the state, people were saying that wasn't happening. Maps were taken home over the weekend, holes were put in the middle of it, districts were put back in place with competitiveness as the sole criteria were some of the allegations. The process is very important. It happens once a decade, it affects electoral rights for a decade. And if the process isn't properly followed, people don't have confidence. That's not hubbub, that is a serious constitutional standard.
Ted Simons: Often when the process isn't properly followed there will be nullification of whatever the process result the in, and you go back and essentially have a do-over. That seems to be often the case with open meeting law violations. Why not that situation here?
Joe Sciarrotta: This wasn't just open meeting violations. The argument is the process wasn't done in open, things were done in secret, the constitutional requirements to create maps weren't followed. But it misses a key point. It goes back to why this is a non-justiciable matter. This is a check and balance in our constitutional democracy, and the governor is given responsibility to step in when she finds the process is not being followed, such that substantial neglect of duty or gross misconduct is taking place that. Is a constitutional decision and authority given to the governor. And it's an important part of the process.
Ted Simons: Last question, you mentioned checks and balances. The original authors of the initiative which wound up being the independent redistricting commission, the law, said it was not their intent for this to be in their words a back doorway to remove a commissioner. It was very serious, very serious gross neglect, someone taking bribes, someone acting memory unstable, something along these lines. You mention add one-person czar. Critics say the governor is acting like a one-person czar because the original intent was not to have a one-party system deciding with a two-third vote and the governor sending the troops on the way to have this kind of removal process unless it was extremely serious. How do you respond to that?
Joe Sciarrotta: The Constitution is clear. And the authors of that provision knew the legal standard that was in place under the meekham case law. And the process is there. And it's not back door, it was actually very up front, the governor was very measured, this is not an action she wanted to take. This is something that based on months of allegations, and concerns, and problems, rose to the level and finally after sending a letter and getting a response in her determination, which is constitutionally invested in her, she made the decision, substantial neglect of duty and gross misconduct had occurred.
Ted Simons: Oral arguments November 17th?
Joe Sciarrotta: November 17th at 2:00 p.m.
Ted Simons: That's the next step. Good to have you here. Thanks for joining us.
Joe Sciarrotta: I appreciate it.