County Supervisors' new Shadow County Attorney issues reversed legal advice - can anyone say bar complaint?

We have been astounded watching what the County Supervisors will pull - using your tax dollars - to stop Sheriff Arpaio and the County Attorney from criminally prosecuting two of their own, Stapley and Wilcox. One of the ways they have been sabotaging the prosecutions is by setting up their own Shadow County Attorney's Office, headed by a young green attorney with only a few years of legal experience in mostly nonrelevant areas, Wade Swanson, at a salary of $175,000/yr (a higher salary than every single one of the 300 attorneys who work for the Maricopa County Attorney's Office, some who have 25+ years of experience under their belt and prosecute the most serious homicides). The Supervisors then use this shadow office to attack the Sheriff and the County Attorney legally and accuse them of all kinds of things.

This week, the County Supervisors refused to sign off on the Special Prosecutors the County Attorney appointed to prosecute Stapley. The reason the County Attorney appointed Special Prosecutors in the first place was because the Supervisors had complained it was a conflict for the County Attorney's Office to prosecute Stapley. There is nothing legally wrong with the County Attorney's Office prosecuting Stapley, but as a courtesy, the County Attorney decided to outsource the prosecution, sending the first Stapley charges to Yavapai County to prosecute, and the second Stapley charges to Special Prosecutors.

In a memo issued on October 20 by the overpaid, big spending liberal County Manager David Smith, the Supervisors said they refused to approve the Special Prosecutors because they didn't reside in Maricopa County. Shadow County Attorney Wade Swanson provided an Attorney General opinion which said that Deputy County Attorneys must reside in the county. But he was embarrassingly wrong. He failed to mention a later 1988 Attorney General opinion (I88-052) by AG Bob Corbin which reversed that opinion:

This is to inform you that Ariz.Atty.Gen.Op. I88-052 dated April 26, 1988 has been withdrawn. That opinion erroneously relied upon two earlier Attorney General opinions, Ariz.Atty.Gen.Ops. I79–186 and I78–55, which had incorrectly interpreted art. VII, § 15 of the Arizona Constitution.

You had initially asked whether, pursuant to A.R.S. § 15–253(B) [FN1] the Attorney General would review a school opinion written by a private attorney who was not a resident of the county (non-qualified elector), but who was nevertheless representing the district with the consent of the county attorney.

The Arizona Constitution, was amended in 1972 to remove the requirement that a “person elected or appointed to any office of trust or profit” must be a qualified elector of the political division he serves. Art. VII, § 15 now limits this requirement to only those holding elective office, providing as follows:

Every person elected or appointed to any elective office of trust or profit under the authority of the State, or any political division or any municipality thereof, shall be a qualified elector of the political division or municipality in which such person shall be elected.

(Emphasis added.) See Laws 1971 (1st Reg.Sess.) Senate Concurrent Resolution 9. [FN2]

Because an attorney hired by a school district with the consent of the County Attorney does not hold an elective office, legal representation by a non-resident attorney of a local school district governing board is permitted. Therefore, the opinions of that attorney may be reviewed by the Attorney General, pursuant to A.R.S. § 15–253(B).

Incidentally, the Supervisors never protested when the Yavapai County Attorney hired Mel Bowers to handle the first Stapley prosecution. Bowers is a resident of Maricopa County, not Yavapai County, so he is practicing law for the Yavapai County Attorney's Office as a nonresident. And there are many Deputy County Attorneys who work for various County Attorney's Offices around the state who do not reside in the county of the office they work in. This is a discredited and reversed argument that the Supervisors have put forth and by ignoring the AG opinion reversing the erroneous legal grounds they rely upon, Wade Swanson should be expecting a bar complaint for malpractice. It is outrageous that someone with that little experience is paid $175,000/yr by the taxpayers to issue incorrect legal advice. Any first year law student knows to look up a law to see if it had been reversed.

What this comes down to is the Supervisors want immunity for Stapley, they want to be able to choose who prosecutes him. They are manipulating the legal system to thwart criminal prosecution of one of their own, which gets into a whole host of ethical and criminal issues.