Outgoing Maricopa County Treasurer Royce Flora has filed a Bar complaint against County Attorney Allister Adel for refusing to approve his request for outside counsel to consider a lawsuit against the Board of Supervisors in a dispute over pay raises he sought for two employees, though it’s unclear exactly what laws he thinks it may have violated.
According to county spokesman Fields Mosley, Flora wanted to increase the pay of two treasurer’s office employees by 10%. The county’s human resources department rejected the request last month, though both sides later agreed to a compromise in which Flora eliminated a supervisory position and divided its duties between the two employees in exchange for 5% raises.
County policy gave Flora the option of appealing the HR decision directly to the Board of Supervisors, but never did. Instead, he contemplated suing the board — as the entity that oversees the human resources department — because he questioned its authority to deny the pay raises he requested and accused it of interfering with the operation of his office.
But the Maricopa County Attorney’s Office denied Flora’s request to hire outside counsel he could consult with about the possible litigation. Adel’s office told Flora in August and again in September that he hadn’t followed the proper procedure for obtaining outside counsel, starting with the assertion that he hadn’t even identified a legal issue for which he would need counsel.
Flora alleged in his Bar complaint that Adel had a clear conflict of interest when her office denied his request for outside counsel. The Maricopa County Attorney’s Office represents both the treasurer’s office and the Board of Supervisors, and Flora alleged in the complaint that Adel “owes her allegiance” to the supervisors because they appointed her as county attorney last year.
In addition, Flora alleged that Adel’s office failed to communicate with him in a timely manner, which he deemed an intentional move aimed at denying him legal representation from outside counsel.
“The Office of Treasurer is not subordinate to a county governing Board of Supervisors. The Office of Treasurer is a statutory/constitutional office having independent authority under state law and state constitution,” read a press release posted on the treasurer’s office’s website.
Jennifer Liewer, a spokeswoman for the county attorney’s office, said it would be inappropriate for Adel to comment on the Bar complaint until she’s able to formally review and address the allegations.
Liewer defended MCAO’s handling of the outside counsel issue, and noted that the first step in providing advice on any matter is to identify any relevant legal questions and facts.
“The first step in advising on any matter is identifying the legal questions being asked and relevant facts. As government attorneys, we also are ethically required to analyze when legal conflicts may exist and when outside counsel must be appointed at an added expense to taxpayers,” Liewer told the Arizona Mirror.
State Bar of Arizona spokesman Alberto Rodriguez said the complaint is in the pre-screening process and couldn’t comment further on the matter.
Flora sought the raises, which equalled about $2 per hour, in an attempt to ensure that the office retained the employees. But the HR department rejected the request and “could not support the increase based on the Treasurer’s statement of alleged retention issues,” according to a legal analysis prepared by the county attorney’s office, which Flora’s office provided to the Arizona Mirror.
Flora could have requested that the disputed pay raises go before the Board of Supervisors, but hasn’t done so. According to MCAO, the county’s deputy director of human resources said it’s been years since an elected county official has referred a pay raise to the supervisors.
Clint Hickman, the chairman of the Board of Supervisors, agreed with the compensation department’s decision, according to MCAO’s legal analysis.
“The Chairman does not speak for the Board; accordingly, the Board has not denied the Treasurer’s request,” MCAO’s legal analysis stated.
And even if the board does reject an official request from the treasurer’s office, MCAO told Flora that it would “likely” be within its legal authority to do so. Because the raises are not part of a promotion or a new position that is vital to the office’s operations, and would be for retention purposes, the supervisors would have statutory authority over those wage plans, MCAO explained.
MCAO cited state law and county human resources policy outlining the supervisors’ authority to set employee salaries and Human Resources’ authority over pay raises to resolve “recruitment or retention issues (that) exist because pay disparity in the market.”
Nonetheless, Flora wanted to explore the possibility of suing human resources and the Board of Supervisors, alleging they abused their power by rejecting the pay raise — despite the fact that the board hasn’t yet denied the request and the treasurer hasn’t yet asked them to weigh in.
Former Maricopa County Attorney Rick Romley, who served from 1989 to 2004, said the supervisors’ authority over such appropriations is clear and that “there’s no question at all” whether the board has authority to reject a requested pay raise. And even if there were a question, Romley said the issue wouldn’t be ripe for litigation because the board hasn’t actually rejected any request for pay raises. He also noted that the supervisors are the ones who ultimately approve requests for outside counsel.
Romley said there can be conflicts of interest that arise at MCAO during disputes between elected county officials it represents and that such conflicts could necessitate the need for outside counsel if someone was considering possible legal action. But in order to qualify for outside counsel, an elected official would still have to demonstrate that there is a genuine legal issue at hand.
“You’ve got to make a prima facie case that there is a really legitimate argument there. And in my mind, they haven’t done it,” Romley said.
Ron Bellus, a spokesman for Flora, emphasized that the treasurer had not decided whether to take legal action against the board. But he wanted to discuss the matter with counsel to determine whether that was proper course of conduct, and Bellus said Flora wanted to speak with attorneys outside MCAO because it also represents the supervisors.
“That’s not their call. The board is not in charge of the other officers,” Bellus said.
Bellus also said Adel initially ignored Flora’s request, and that he later had to reach out to other attorneys in the office to get an answer.
Flora is no longer considering legal action against the supervisors and has decided to drop the matter, Bellus said.
In late August, Emily Craiger, an attorney in MCAO’s government advice division, asked Flora to explain his legal question so the office could review and discuss his request for outside counsel.
Flora responded that he didn’t have a question, stating, “The Board has abused its authority and interfered with the operation of my office. Since your office has a conflict, I need an outside attorney to litigate the issue immediately.”
Craiger replied that Flora needed to identify a legal issue in order to get outside counsel.
“Respectfully, there is a process for requesting outside counsel. The first step of that process is identifying the legal question or issue. If you’re telling us that there is no legal question then there are no further steps for our office to take,” she said.
Thomas Liddy, who heads up MCAO’s civil division, told Flora in an email on Sept. 10 that the next step would be for him to request that the supervisors approve the pay raises. Though Flora has expressed disagreement with the board’s position, Liddy emphasized that the supervisors have not yet taken any action on the matter.
“Additionally, County Attorney Adel has asked me to respond to your inquiries about the appointment of an outside counsel. There is a specific process that must be followed in order to obtain the appointment of outside conflict counsel. That process has been outlined by the courts,” Liddy wrote.
In response, Flora alleged to Liddy that it was Hickman’s office that prevented the treasurer’s office from increasing the employees’ salaries, and that state law only allows the supervisors to set employment classifications and salary ranges, not set individual salaries for the treasurer’s office. Based on that disagreement, Flora said he should be permitted to hire outside counsel.
The Arizona Constitution states, “The board of supervisors of each county is hereby empowered to fix salaries for all county and precinct officers within such county for whom no compensation is provided by law.” State law dictates that county boards of supervisors have the power to “Determine the budgets of all elected and appointed county officers.”
Flora, who was elected in 2016, will leave office in January after losing the Republican primary in August to state Rep. John Allen. Allen will face Democrat Daniel Toporek in the general election.