Welch v. Cochise Cnty. Bd. of Supervisors (10/9/2020)

January 4, 2021

Arizona Court of Appeals Division Two holds that a taxpayer has standing to challenge the violation of open-meeting laws and conflict of interest laws resulting in an illegal appointment and, through the illegal appointment, an illegal expenditure of municipal funds.

A justice of the peace position was vacant in a county, and the county board of supervisors met to consider an appointment to the vacancy.  At the meeting, a supervisor suggested they should dispense with a committee appointment process and accept applications.  The board then went into executive session, then voted to table the matter and recess.  Later that day, the board reconvened, and one member immediately moved to appoint another member, and the board then voted 2-0, with the appointee abstaining, to appoint the member.  A citizen sued two days later, alleging the appointment violated the open meeting laws (A.R.S. §§ 38-432.01 to -432.09) and conflict-of-interest laws (A.R.S. § 38-503).  The citizen sought equitable remedies (such as nullifying the appointment) and monetary penalties against the board members and attorneys’ fees and costs.  The board then noticed a meeting to ratify its actions.  The superior court granted the board’s motion to dismiss for lack of taxpayer standing as the tax monies would be spent on the justice of the peace no matter who was appointed.  It also held that the board had cured any deficiencies related to the open meeting laws by ratifying the appointment and that the citizen failed to plead a conflict of interest.  

The Court of Appeals reversed.  The Court of Appeals refused to join Idaho’s courts in holding that a taxpayer can only have standing to challenge the violation of an open meetings law if the taxpayer alleged that they would have attended an open meeting.  Rather, a taxpayer has standing to challenge any expenditure that fails to comply with good-government statutes because they have an interest in maximizing value received for money spent.  However, only the attorney general, the county attorney, and persons who have made a rejected request to the attorney general or county attorney have standing to seek the removal of a county official.  A.R.S. § 12-2043.  The taxpayer thus could not seek the removal of the justice of the peace.

The Court of Appeals also held that the superior court erred in dismissing claims for civil penalties under the open-meetings and conflict-of-interest laws. Ratification of an open-meetings violation merely prevents the decision from being null and void; it does not negate the violation or prevents civil penalties from being assessed.  The facts alleged—that the appointee participated in his own appointment to a salaried position, including the inference he may have advocated for his own appointment during the executive session—were also sufficient to state a claim under the conflict-of-interest statutes.

Judge Eppich delivered the unanimous opinion of the court.  Judge Eckerstrom and Judge Brearcliffe joined.