Hounshell v. White – 7/22/2008

July 29, 2008

Arizona Court of Appeals Division One Holds That a County Board of Supervisors May Require a County Officer To Post a Bond, and May Remove the Officer for Failure To Post the Bond, but That the County Must Pay the Bond Premiums.

Apache County Sheriff Hounshell was indicted on crimes regarding the misuse of public funds and property.  The Arizona Counties Insurance Pool then told the Apache County Board of Supervisors (the “Board’) that it would not cover any losses caused by Hounshell’s dishonest or fraudulent acts after his indictment.  The Board, therefore, required Hounshell to post a bond to cover any amounts and also required him to pay the bond premiums.  After Hounshell did not post the bond, the Board voted to remove him from office.  Hounshell filed a special action to have the vote declared void and the Board filed two quo warranto actions to have him removed; all three actions were consolidated.  The trial court held that the Board was not authorized to remove Hounshell for failure to post a bond because the statute authorizing the bond requirement, A.R.S. § 11-253(A), had been repealed.  The trial court, therefore, awarded Hounshell attorneys’ fees as the prevailing party. The Board appealed.

The Arizona Appeals Court held that pursuant to A.R.S. § 11-253(A), the Board was authorized to require Hounshell to post a bond, and could remove him for failure to post said bond, but that under A.R.S. § 38-254, the County was responsible for paying the premiums on the bond.  Because the Board erroneously required Hounshell to pay the premiums, it acted in excess of its authority in removing him from office.  Hounshell, therefore, was the prevailing party and the award of attorneys’ fees was proper.

The Court explained that the trial court’s order reinstating Hounshell on the grounds that A.R.S. § 11-253(A) had been repealed by a more recent bill was erroneous but the Court nonetheless found grounds to uphold the trial court’s ruling.     

Judge Snow authored the opinion, Judges Johnsen and Hall concurred.

NOTE:  Judge G. Murray Snow (one of our former colleagues) has been appointed to the United States District Court.  We are confident Judge Snow will be missed at the Court of Appeals, but are pleased that the Arizona District Court will now benefit from his keen intellect, wisdom, and judicial temperament.  We wish Judge Snow the best of luck in his new position.