The Independent Redistricting Commission asked a judge Tuesday to quash an investigation by Arizona Attorney General Tom Horne into whether members violated the state's Open Meeting Law, saying its members are not subject to its requirements.
Legal papers prepared by the commission's lawyers contend the panel is governed only by the terms of a constitutional amendment approved more than a decade ago by voters. That measure requires that when a quorum of members are present, the commission "conduct business in meetings open to the public.''
But the attorneys said the Open Meeting Law that applies to virtually all state and local agencies is "unenforceable'' against commission members. And they said the state Constitution does not allow Horne to "wield his investigative and enforcement powers'' over its members.
That distinction is crucial.
Public officials found guilty of violating the Open Meeting Law can be removed from office by a judge
But the commission's lawyers say that even if there has been a violation of the constitutional requirement for open meetings -- something they are not conceding -- removal from office by a court is not an option. Instead, they said commissioners can be ousted only through a legislative impeachment proceeding.
Horne, however, said the commission is reading its constitutional authority far too broadly in claiming an exemption from the law.
"If they had passed an initiative that said provisions of the Open Meeting Law do not apply to this commission, I would agree,'' he said. But Horne said there is no such language.
Hanging in the balance is whether Horne will be able to pursue his probe of whether at least three of the commissioners skirted the law in deciding who should get a key contract.
He said there is evidence that Colleen Mathis, who chairs the commission, called other panel members ahead of the meeting to line up the votes to select Strategic Telemetry as the consultant to help draw new congressional and legislative boundaries. That firm was eventually chosen over the objection of the two Republicans on the commission who expressed concerns over the company's strong Democratic ties.
Horne said that by calling at least two other commissioners, Mathis appears to have illegally skirted the Open Meeting Law because she essentially engineered a vote of the majority of the five-member panel outside the view of the public.
Horne says his office has broad authority to investigate violations of that law.
But Mathis, an independent, and the two Democrats are refusing to talk with Horne's investigators. So Horne filed suit earlier this month to compel them to submit to interviews.
Tuesday's lawsuit seeks to undermine that case by arguing the commission, as a separately established constitutional body, is no more subject to the law than the Legislature itself. And to the extent there is a requirement for open meetings, no one can force commissioners to talk to Horne's investigators.
In their complaint, the lawyers said the only remedy for someone contending the commission is violating its own open meeting requirements is to file suit and ask a judge to review the matter.
Maricopa County Superior Court Judge Dean Fink is slated to consider Horne's prior request to compel testimony by the commissioners on Monday. Commission attorneys said they hope to consolidate their bid to halt his inquiry with that case.