At least on a preliminary basis, the Arizona Independent Redistricting Commission will use the state procurement process to review prospective legal counsel, which would require it to do most of its work behind closed doors.
However, the commissioners may also change course down the road and choose a different process that would give the public a full view of their decision-making process.
Ultimately, the decision will likely come down to which applicants the commissioners favor. The AIRC doesn’t have to use the state procurement process if it wants to hire a law firm that already contracts with the state through the Arizona Attorney General’s Office. Procurement is only required if the commissioners want the option of hiring a firm that isn’t already on the attorney general’s list.
Nine law firms have submitted proposals to serve as the commission’s legal counsel, seven of which are on the attorney general’s list. At the time they made the decision to move forward with the official procurement process, the commissioners did not know yet who the applicants were.
The reason for that is that they had to first determine what criteria the AIRC will use to evaluate the applicants, staff from the Arizona Department of Administration explained during the commission’s meeting on Tuesday. That ensures that the criteria aren’t geared toward any particular applicant and inoculates the commission from any potential accusations of bias in selecting legal counsel if it decides to select its attorneys through procurement.
Republican Commissioner David Mehl and Democratic Commissioner Derrick Watchman both expressed frustration at Tuesday’s meeting that they hadn’t been able to see who the applicants were, and were wary of moving forward without examining all nine firms.
“Why are we not getting all of the applications to at least peruse, since we’re given the procurement authority?” Watchman asked.
Chairwoman Erika Neuberg said beginning with the procurement process would allow the commission to vet all the applicants. Relying on the state’s procurement expertise would also help shield the AIRC from potential litigation regarding the choice of legal counsel, she said.
Andy Tobin, director of the Arizona Department of Administration, informed the commission earlier this month that he was granting it full procurement authority, giving it the power to choose its own course on such matters. However, Neuberg said it may still pay to be cautious.
“Just because we have the authority to procure doesn’t mean that we’re absolved of the responsibility to meet state statute and guidelines. The five of us do not have that expertise to do it in a way where we would not subject ourselves to potential litigation. The safest, most effective way is to rely on the State Procurement Office, which does this all the time, in cooperation with us, so we can all collectively feel that the process will be done according to law and ethics,” she said.
And if the commission decides that it prefers to limit its choices to the attorney general’s list and conduct the hiring process in public, Neuberg said the commission reserves the option of abandoning state procurement down the road.
“I understand it’s not simple, it’s not easy. But I don’t see much of a downside to at least begin the process of RFP,” she said. “Then if we choose at this point that there’s no added benefit to going through this process with the state, we can take ownership back with the firms that have already been procured.”
The selection of legal counsel is a politically sensitive issue, and one that derailed the previous commission in 2011 long before it began actually drawing legislative and congressional districts.
The first two commissions opted to hire separate Republican and Democratic counsel, giving all four partisan commissioners an attorney from their side of the aisle, and the current AIRC has expressed interest in doing the same. But in 2011, AIRC Chairwoman Colleen Mathis and her two Democratic colleagues chose both attorneys on a 3-2 vote, and the two GOP commissioners were upset that the majority chose a Republican attorney they opposed.
While procurement would give the commissioners a broader selection of attorneys, it also comes with a big downside — most of the work would have to be done in executive session, outside the public’s view.
Kristina Gomez, who served as deputy executive director for the last commission and was a finalist to serve as executive director for the current AIRC, advised the commissioners to avoid the State Procurement Office, a division of ADOA, and use their own procurement authority instead. In her interview with the commission last week, Gomez said the state procurement process requires the commission to do too much work in executive session.
“There comes a point when this process needs to be done fully in open session and everybody needs to see what’s going on,” Gomez said. “I believe that’s what got the first commission tripped up is they were trying to follow the guidelines within the State Procurement Office. However, that doesn’t go well with this process. This agency isn’t a typical state agency. This is totally different. This is an independent body and all eyes are watching you.”
Mathis agreed that the last commission’s reliance on the State Procurement Office’s process was problematic. She told the Arizona Mirror that not only did it require the commission to spend too much time in executive session, but it caused friction when commissioners declined to follow the scoring systems they developed, which she said happened with the selection of legal counsel. Under that system, every commissioner is supposed to vote for the highest-scoring applicant, and the State Procurement Office was unhappy when they didn’t do so.
“We ended up thinking that by using SPO’s procurement process that we would be doing a great thing because it was a tried and true process. But it turns out that really doesn’t work well for the commission. And I think all five of our commissioners would agree about that,” Mathis told the Mirror during an interview in January. “There were just a lot of constraints with the SPO process that just didn’t work.”
The State Procurement Office eventually terminated its relationship with the AIRC after the commission “frequently pursued direction other than that offered by SPO.”