Monday, June 20th, 2011


Sheriff Joe Arpaio

Judge Sam Myers of the Superior Court for Maricopa County has issued an order in regard to the report by the Pinal County Sheriff’s Office on possible misconduct by officials in the Maricopa County Sheriff’s Office. (The report was undertaken by Pinal Sheriff Paul Babeu, who today won accolades as the National Sheriff of the Year.)

News organizations had sought the public release of the complete report. Today, Judge Myers ruled that portions of the report pertaining to individuals no longer employed at the Maricopa County Sheriff’s Office may be released. The remainder—in regard to Captain Joel Fox—will remain under wraps until his disciplinary process has been completed.

Here is the minute entry in Phoenix Newspapers Inc. v. Joseph M. Arpaio, LC2011-000277-001 DT

MINUTE ENTRY

Following oral argument, the Court took under advisement Petitioners’ Complaint for Statutory Special Action and Respondent’s Motion to Dismiss.  The Court has subsequently received Post-Hearing briefs from both parties.

Sheriff Paul Babeu accepts the award for 2011 National Sheriff of the Year.

In their Complaint, Petitioners argue that the investigative report conducted by Pinal County Sheriff Paul Babeu (“Babeu report”) must be open in full to public inspection pursuant to Arizona’s Public Records Law, A.R.S. §39-121.  Respondent argues that A.R.S. §38-1101(K) prohibits full disclosure because the investigation of Mr. Fox is ongoing and the disciplinary appeal process has not concluded.

In order to analyze the proper treatment underArizona law, it is crucial to understand the nature of the Babeu report.  Sheriff Babeu was tasked with conducting an “administrative investigation concerning alleged policy violations” of three MCSO employees (Report of Administrative Investigation, page 1).  The Babeu report is not a criminal investigation; its purpose is to determine if three MCSO employees had violated MCSO policies.

Because the Babeu report is an administrative investigation of employees, Arizonalaw gives protections that would otherwise be unavailable to other “public records”.  A.R.S. §38-1101(K) states:

An employer shall not include in that portion of the personnel file of a law enforcement officer or probation officer that is available for public inspection and copying any information about an investigation until the investigation is complete or the employer has discontinued the investigation. If the law enforcement officer or probation officer has timely appealed a disciplinary action, the investigation is not complete until the conclusion of the appeal process.

Having considered the arguments of the parties, the Court interprets A.R.S. §38-1101(K) as a mandate from the legislature to protect employee investigations from public disclosure until either the investigation is closed or the appeal rights of the employee have terminated.

Following the issuance of the Babeu report, two of the three investigatory subjects have resigned from MCSO.  According to counsel for Respondent, one employee, Mr. Fox, is still involved in the disciplinary process.  For this reason, the Court finds that A.R.S. §38-1101(K) precludes the public disclosure of the Babeu report as it pertains to Mr. Fox.  However, A.R.S. §38-1101(K) is inapplicable to the two former employees, and A.R.S. §39-121 mandates the release of the report as to those two individuals.

On June 1, 2011, the Court ordered Respondent to provide in-camera a complete copy of the unredacted Babeu report and copies of the redacted public disclosures in order to determine if the redactions were properly made.  The Court was promptly provided with both versions of the report.  Having reviewed thousands of pages of the redacted report that were provided to Petitioners, the Court cannot find that the redactions are inappropriate.  Respondents were tasked with the difficult job of protecting the Fox investigation while releasing the remainder of the report.  The Court finds that Respondents have acted in compliance with A.R.S. §38-1101(K).

In regard to Respondent’s Motion to Dismiss, the Court finds no basis upon which to dismiss Petitioners’ action.  The Babeu report is a public record that, upon completion of Mr. Fox’s disciplinary process, will be disclosed in full to the public.  The Court finds that Petitioner’s action is legitimate and, though temporarily denied in part, will ultimately be granted in full.

IT IS ORDERED accepting jurisdiction of Petitioners’ Complaint for Statutory Special Action.

IT IS FURTHER ORDERED granting relief in part, as outlined above, to Petitioners’ Complaint for Statutory Special Action.

IT IS FURTHER ORDERED that, within thirty (30) days of the expiration of Mr. Fox’s disciplinary appeal rights, that Respondent shall provide the complete unredacted report to Petitioners.

IT IS FURTHER ORDERED denying Respondent’s Motion to Dismiss.

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On offer this year: A fortune-cookie. Hmmm.

The State Bar Convention ended on Saturday, but there are still a few housekeeping matters I need to address. So expect a post or two more about Convention content.

One of the favorite posts from last year’s convention (OK, one of my favorite posts) had to do with swag, those (sometimes) marvelous items you get from exhibitors as you traipse past their hard-working booths.

Spoiler-alert: I don’t think this year’s haul was quite as remarkable as last year’s. Nonetheless, I am honor-bound to provide photos of the 2011 swag. (Special thanks to my daughter Willa Eigo, who schlepped up and down stairs and ventured into multiple conversations in order to bring these items to your view. I really do need to pay her more.)

Without further ado, here are the items (please don’t complain, but I did not have the strength to photograph the surfeit of pens that were on offer. I like pens as much as the next free-seeker, but if it was a simple pen with an exhibitor’s logo, no photo)

Tomorrow, I give you my thoughts on what was one of the best events at convention.

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