The state's top prosecutor asked a judge on Wednesday to force three members of the Independent Redistricting Commission to talk with his investigators about whether the conspired to award a contract.
Attorney General Tom Horne said he has reason to believe that Colleen Mathis, who chairs the five-member panel, violated the state's Open Meeting Law in pushing for the selection of Strategic Telemetry as the consultant to help draw new congressional and legislative boundaries. That firm eventually was chosen over the objections of the two Republicans on the commission who said they were concerned about the firm's strong Democratic ties, including campaign work for both John Kerry and Barack Obama.
Horne said the Republicans told his investigators that Mathis, a registered independent, called them ahead of the meeting to formally select the consultant to line up the votes for Strategic Telemetry. More to the point, Horne said, she told the Republicans she wanted a unanimous vote.
"If their votes would have given her a 5-0 vote, that indicates she had also lined up the votes of the other two members,'' Horne said, both Democrats. He said that means she had talked to at least two other commissioners.
"That's a violation of the Open Meeting Law,'' he said. "And they got specific training that told them they could not do that.''
But Horne said that Mathis has ignored repeated requests to explain what happened to investigators, as have Democrats Linda McNulty and Jose Herrera. So he wants Maricopa County Superior Court Judge Dean Fink to compel them to talk.
A hearing is scheduled in front of the judge on Oct. 3.
The three commissioners did not respond to requests through the panel's public information officer to comment either on the vote for Strategic Telemetry or the activities leading up to that.
But the commission's two attorneys, in a prepared statement late Wednesday, called Horne's decision to sue "disappointing,'' saying he should instead "work with the commission to address his concerns.'' The statement did not explain, however, how Horne should do that since the issue involves three commissioners who so far have refused to submit to interviews.
The attorneys also said the commission "welcomes'' having a court hearing on the issues. That includes the contention of the lawyers that the attorney general has no authority to investigate the panel.
If the law was broken, Horne said the offending commissioners could be found guilty of malfeasance and removed from office by a court. But he also said it could provide grounds to trigger a constitutional provision that allows the governor and two-thirds of the Legislature to oust commission members.
The questions of Open Meeting Law violations, however, may be just the edge of the inquiry.
Horne pointed out that Mathis and the two Democratic panel members each gave Strategic Telemetry perfect scores on evaluation sheets, something Republican commissioner Richard Stertz told investigators would appear to be "intellectually dishonest.''
"It is unlikely that these unusual acts would occur independently and coincidentally among three commissioners, without their having made an agreement in advance,'' Horne said.
The Independent Redistricting Commission was created by voters in 2000. Proponents of the initiative said it would remove some of the politics from the decennial process, where legislators drew lines advantageous to their own reelection and party control.
This decade's commission, though, has been racked by charges of partisanship after it was revealed that Mathis, the independent, failed to disclose that her husband had worked on the unsuccessful reelection campaign of a Tucson Democratic legislator. Mathis also has voted with Democrats on other issues, including overriding who the Republican commission members wanted as their attorney.
In their letter to Horne's office, commission lawyers Mary O'Grady and Joe Kanefield said the 2000 constitutional amendment makes no mention of the ability of the attorney general to investigate Open Meeting Law violations.
"This objection does not mean that the commission cannot be held accountable for its constitutional obligation to conduct its business in open meetings,'' they wrote. "It simply requires that the constitutional open meeting requirements be addressed by the courts, rather than through an enforcement proceeding initiated by the attorney general.''
Horne countered that the law covers all "public bodies,'' and that includes the commission. And he said any claim of "legislative privilege'' on the grounds the commission is acting as a legislative body "doesn't cover investigation of acts that are contrary to law.''
He also argued that there are no grounds for commissioners to refuse to talk on the basis they are exercising their Fifth Amendment right against self-incrimination, even if they are the targets of the investigation and could be removed from office.
"You can't take the Fifth because it's not a criminal investigation, it's a civil investigation,'' he said.
Potentially more significant, Horne contends that, unlike someone who exercises his or her rights not to speak in a criminal case, the refusal to answer questions can be used as evidence of wrongdoing.
"If they refuse to testify ... you can use that as a presumption that the evidence against them is correct because a reasonable person, if a false accusation was made against them, would speak up,'' he said.
Horne's theory that it is illegal for one member of a public body to line up votes ahead of time could have broader implications if a court agrees. The exact same process is used by legislative leadership each year in putting together major legislation, especially the state budget.
Both Senate President Russell Pearce and House Speaker Andy Tobin have what are called "small group meetings,'' designed to have fewer than a majority of the members of either chamber present to see if they would be willing to vote for a specific plan. And lawmakers routinely run a "laundry list'' before bringing controversial legislation to the floor, asking each colleague whether he or she would support the measure and then checking off the names to be sure there are enough votes.
Horne, who has previously served as a state lawmaker, sidestepped questions about whether that, too, violates the law, saying "the Legislature is a little bit different situation.''
"The Legislature is the rule maker,'' he explained. "Some courts have treated legislatures as a special class for that reason.''