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tcorrigan / Terence Corrigan/The Independent  

Spring is the season of new beginnning as seen in the flowering trees at Woodland Lake Park.

Chief Deputy's claim underscores pension issues

APACHE COUNTY — Chief Deputy Brannon Eagar has served the citizens of Apache County with the Sheriff’s Office since 1999. Since 2012 he has also worked out of state as an administrator responding to major wildfires and other incidents.

“ I am a participant on a Type 1 incident management team,” he explained.

Type 1 is designation for different levels of emergency (Type 1, Type 2, Type 3, etc.). Type 1 is the most severe and critical designation for an emergency, be it a wildfire, hurricane or other disaster.

“There are only 15 Type 1 teams in the U.S.,” Eagar added. “This is how the nation covers these events. No one state has enough personnel to handle this,” he added.

For 2019, Eagar is listed as a liaison officer for the Nieto Team of the Southwest Coordination Center, based in Albuquerque. The Southwest Coordination Center brings together the resources of Arizona Department of Forestry and Fire Management, New Mexico Department of Forestry and five federal agencies including the US Forest Service and the Bureau of Land Management to respond to fire emergencies.

In 2018, Eagar served on emergency response teams for three out-of-state wildfires, the Diener Canyon Fire and the Soldier Canyon Fire, both in New Mexico and the Howe Ridge Fire on the west side of Glacier National Park in Montana. He also responded to the Pinery Fire in Cochise County. The largest of these fires was the Howe Ridge Fire, which burned over 14,000 acres near Lake McDonald in Glacier National Park and consumed nearly 30 structures.

Compensation for Eagar’s work at such incidents is handled through a Cooperative Fire Rate Agreement the county has with the Arizona Department of Forestry and Fire Management (DFFM). Apache County renewed this agreement at their April meeting in Ganado.

Two county employees are listed in the agreement’s Personnel Pay Schedule: Brannon Eagar and Sergeant Dayson Merrill. Eagar’s hourly pay rate for wildland fire, including benefits, is $74.18, compared to his regular hourly pay rate, which is listed as $43.55. His overtime wildland fire pay rate is listed as $111.26 with benefits.

While the county does pay Eagar his regular salary while he is away working on other emergencies, the county receives complete compensation for Eagar’s salary and all of his benefits and travel through the Cooperative Fire Rate Agreement.

County moves to

reduce benefits

In January 2018, Apache County Attorney Michael Whiting wrote a letter to Jared Smout, administrator of the Arizona Public Safety Personnel Retirement System (PSPRS). In the letter, Whiting disputes the legality of the calculation of Eagar’s pension contributions based on overtime pay he received while serving on wildland fire response teams.

In his position as chief deputy, Eagar contracts with the county as a salaried, or “exempt” employee — meaning he is not eligible for overtime pay within his contract with the county.

“These payments included additional pay for overtime, even though he is an exempt employee. Given Arizona law, compensation in the form of overtime or bonuses from third parties artificially inflates Mr. Eagar’s pension or retirement benefits from PSPRS,” the letter states.

The letter does not mention the Cooperative Fire Rate Agreement with DFFM. In fact, Whiting writes that “Mr. Eagar’s emergency management work was not part of a ‘contract between public agencies’ …” Whiting even appears to deny that Eagar was working on wildland fires.

“While Arizona law does allow additional retirement as an employees’ compensation may include ‘third party contracts between public agencies’ involving ‘fire’ or ‘wildfire’ that is not the case here,” he wrote.

In written a response to Whiting, Ivy Voss, a legal counsel for PSPRS, agrees with Apache County’s position. “It appears that Mr. Eagar’s emergency management work was not part of a contract between public agencies, and therefore the earnings attributable to that work would not be pensionable,” she wrote.

As a result of these communications between Apache County and PSPRS, Chief Deputy Eagar did not receive pension benefits calculated from his overtime pay for his work on the four fires in 2018. And, Eagar says, he was never notified by the county about the change in the calculation of his pension benefits.

In a Notice of Claim filed by Eagar’s attorney on September 27, 2018, Eagar claims that the county owes his retirement account $17,305 in funds that were withheld by the county from his work on fire emergencies.

“Michael Whiting sends this letter, and it’s wrong. Legally, factually, its wrong. He doesn’t tell Brannon about it, he just sends it off,” said Martin Bihn, Eagar’s attorney. “If Brannon goes and works, say 60 hours as an incident manager at a fire in Wyoming, the state will then pay his salary, his overtime and his pesion directly to the county … they are fully reimbursed,” Bihn explained. Bihn also said that there is nothing illegal in Eagar earning overtime pay.

Bihn & McDaniel of Phoenix also wrote to Voss last July 23, pointing out that Eagar’s work on fire emergencies is subject to the Cooperative Fire Rate Agreement, and therefore his pay received under the agreement is eligible for inclusion in the calculation of his pension benefits.

In her response to Eagar’s attorneys, dated August 15, Voss said that PSPRS was unaware that the county was party to the Cooperative Fire Rate agreement, and referred the matter for the local PSPRS board for further review.

The Apache County Board of Supervisors voted to settle the dispute out of court on February 5, and Eagar’s attorneys have been working with the county to come to a settlement amount. The figure under discussion has not been disclosed, but may include attorney’s fees along with the $17,305.

According to County Attorney Michael Whiting, the issue is that the county receives no benefit from the work Eagar does outside of Arizona, but the county will be saddled with paying the retirement benefits to PSPRS.

“Because he is on the old retirement plan he only has to work for 20 years and then receives a full retirement. I believe he’s very close to that and … the county will be paying his retirement benefits for services it never received for his out-of-state activities,” he wrote in an email.

He said it would be cheaper for the county to settle than to take the issue to court.

“… (I)t may be cheaper and save the taxpayer’s more money, than to begin expensive litigation,” he wrote, noting that this matter has not come before the court in the past.

Communities and counties struggle to pay pension liabilities

Municipalities and counties across Arizona are struggling to meet their pension liabilities under PSPRS. The state pension system for law enforcement and firefighters was created by the state legislature, but it is paid for by cities, towns and counties.

The money in the pension fund is invested, and PSPRS suffered heavy losses during the market crash that occurred in 2007-2008, increasing the burden on municipalities and counties.

“They gave very lucrative benefits to police and fire and just told us to pay the bill,” Prescott Mayor Harry Oberg told the Prescott News in 2017. Some cities and towns have increased sales taxes to help pay for their pension benefits.

Last year Coconino County paid $10 million to PSPRS, taking the money from their capital improvements budget, according to the Arizona Daily Sun. The county said that by paying the money now, it could save as much as $30 million in the long run.

The Independent was unable to verify the dollar figure for Apache County’s current liability to PRPRS by press time.

Changing the rules

Earlier this month, the Apache County Board of Supervisors adopted a new personnel rule to deal with this very issue. The rule states that employees will only be paid at their “regular rate of pay” for “hours worked over 40 hours per week,” even when they are working on emergencies involving a third-party contract such as the Cooperative Fire Rate Agreement. Furthermore, the new rule states that employees “desiring to perform similar services outside the state of Arizona … must do so through an agreement directly between the employee and the outside entity, but not through Apache County.” That means that going forward, Apache County would not be liable for any pension benefits related to out-of-state work.

An anticipated date for the final settlement of Eagar’s claim was not disclosed by either party.

Counties renew agreement to work with feds on wolf reintroduction

HOLBROOK — The Navajo County Board of Supervisors unanimously reaffirmed their commitment to protecting cattle on March 26. With no discussion, the supervisors ratified an agreement between five Arizona counties, Arizona Game and Fish, the White Mountain Apache Tribe and four federal agencies on their intergovernmental relationship involving the reintroduction of the Mexican gray wolf.

(They also voted to spend $600,000 for 36 cattle guards. The funding to purchase the cattle guards was taken from Highway User Revenue Funds [fuel taxes], that by state law can only be used for highway projects.)

The new wolf program agreement, a memorandum of understanding (MOU), was a revision, two years in the making, of a previous MOU established two decades ago around the time the first Mexican wolves were released. The new MOU has only technical changes to the original agreement. It took two years to write as every agency’s attorneys had to approve the wording. Additional delays ensued when the US Fish and Wildlife Service regional office in Albuquerque was without a director for several months following the removal of Benjamin Tuggle in 2017.

The point of the MOU, says Navajo County Supervisor Jason Whiting, is to have a seat at the table, to communicate directly with US Fish and Wildlife Service, the agency with all the power when it comes to the Endangered Species Act.

The first groups of Mexican wolves were released along the New Mexico/ Arizona border on March 29, 1998, when 11 were released into the Blue Range Wolf Recovery Area. The pioneer packs were not well received. Five were illegally killed within a few months and the rest were rounded up, captured and paired with new mates before being released again.

In the first four years, from 1998 to 2002, the released wolf population see-sawed — 110 released and 58 removed (either captured or killed). From 2003 to 2007, the saw-side of the equation prevailed with 84 removed and only 68 released.

The wolf population in 2018 was 131 – 64 in Arizona and 67 in New Mexico. The year before, the census pegged the number at 117.

The counties that signed on with the new MOU are all members of the Eastern Arizona Counties Organization (ECO). Graham, Greenlee, Gila and Navajo counties are signatories to the agreement. ECO member Apache County is not.

The federal agencies that are parties to the MOU are: US Fish and Wildlife Service (the agency with full legal control of the wolf reintroduction program), USDA (the Forest Service and Wildlife Services), the National Park Service and BLM.

Also signing on are Arizona Game and Fish Department and the White Mountain Apache Tribe.

Apache County bows out

Apache County’s absence is based in a persistent political question: Is it better to battle from the outside on principle or work from within and get some of what you want through compromise and cooperation?

But, Apache County, at least at the board of supervisors, has decided to not take a seat at the table of compromise.

“This is where you see the importance of individual elected officials in local government,” said ECO executive director Pascal Berlioux. “In Apache County, in the last couple of election cycles, there have been individual supervisors who have taken very strong positions on certain issues — local authority, versus state authority versus federal authority.”

In particular, in 2015, former District III supervisor Barry Weller, vehemently opposed the county’s continuing involvement in ECO, saying that organization, in working on compromise with Fish and Wildlife, was acting contrary to the interests of Apache County which, he said, wants no wolves at all.

“Some people believe that they can be more effective … working within the system,” Berlioux said. “While some people think they can be a more effective voice by fighting it from the outside. This is the perspective that Apache County has taken. But, that can change anytime we have an election.”

From Berlioux’s experience, no matter which side of the fence you’re on, you’re going to face opposition.

“Whichever side you sit on, somebody’s going to hate you,” he said.

Protecting a way of life

The 13-page MOU mentions the damage wolves cause to “livestock,” at least a half-dozen times and the stated intent, from the counties’ perspective, is about protecting the ranching culture, the way of life of many generations in rural northeast Arizona.

“We essentially have a federal agency coming to us and telling us ‘This is where we are going to recover the Mexican wolf and this is how we are going to do it,’” Berlioux said. Fish and Wildlife officials “can do whatever they freakin’ want. From a legal perspective the MOU is not even worth the paper it’s printed on.” Essentially, the Endangered Species Act, grants USFWS unlimited power. “The ESA says, ‘the heck with consequences, we are going to recover that species whatever the impact.’”

For the MOU to be meaningful, Berlioux said, it depends on the goodwill of those who signed it.

Ranching families, some of whom have worked for generations developing their ranches, have “emotional investment” in their ranch, Berlioux said. Some of these ranching families established their operations before the Forest Service or other federal agencies even existed.

“Their perspective is at odds with a technocrat’s perspective arriving here from New Jersey, who is appointed to run the Mexican wolf program at Fish and Wildlife in Albuquerque. You have a 28-year-old, straight out of school, who knows nothing about life, trying to lecture a 65-year-old rancher, whose family has been here for several generations. That creates some disconnect.”

Although he may not agree with them, Berlioux hears and understands the arguments of those who support the reintroduction of the Mexican wolf. Most Western ranchers run livestock with grazing leases on public lands (Forest Service and BLM) and the livestock losses they sustain (from predators) should be viewed as “part of the cost of doing business,” is how supporters of wolf reintroduction see it, Berlioux explained.

Berlioux sees the disputes from both sides.

“It’s human nature. Someone with a different opinion has got to be dishonest if they don’t think the way you do,” he said. “You can have people around the same table, with different opinions and every one of them is 100 percent honest. Every one of these people has a really valued perspective.”

A change in the political landscape that is showing up more often in the last five years, Berlioux says, is strident opposition to any government control or regulation, especially from programs like the Endangered Species Act. Berlioux calls it the “Bundy phenomenon,” after Cliven Bundy and his sons, Ammon and Ryan, who were engaged in armed standoffs over use of public lands with federal officials in 2014 and 2016 in Nevada and Oregon.

Some of this was evident, however, from the earliest days of the Mexican wolf program. One saying early on encapsulated the sentiment of many of the program’s opponents: “Shoot, shovel and shut up.”

‘The dance’

Although the counties stated concern is to have a seat at the table, Berlioux repeatedly referred to the negotiations with Fish and Wildlife as a “dance.”

Ranchers and local government officials are, without question, legally and financially outgunned.

“The feds have all the authority,” Berlioux said. “What we are dealing with is a federal agency which has the authority to act without the need to secure a budget to do it.”

“The Fish and Wildlife makes the decisions,” Berlioux said. Fish and Wildlife goes through the process, designing actions, issuing public notices and soliciting comments, Berlioux says, but most of the time the process seems more like they’re just checking off the to-do boxes without really listening.

“‘Give me your opinion. I’ll take it into consideration. I have considered your opinion but I’m still going to move on with what I want to do,’” is how he describes the federal process.

But with the MOU, Berlioux says, the government agencies and counties are working to create a group that will serve all constituencies.

“We are attempting to design a coalition of good wills, to try and help the fed accomplish their recovery mission, with their overwhelming authority, in a way which is not too disconnected from the day-to-day reality of the people who live here.”

As the dance continues, Berlioux, the local and state representatives have one tool. They bring social and political power to the dance floor.

“We say to them, ‘You may have the authority to decide, OK. But we have the ear of the Senators who fund your department. So rather than go to a Congressional hearing why don’t we discuss compromise.’”

Former teacher to be sentenced for sex crimes

MARICOPA COUNTY — Navajo County’s 2013 Teacher of the Year pleaded guilty to two sex crimes involving a child on April 6 in the Maricopa County Superior Court. Larry Nicholls, 49, worked as a teacher at Sequoia Village School in Linden. He resigned from that position on May 9, 2018 —one day before the grand jury handed up its indictment. He used to live in Pinedale.

Nicholls entered into a plea agreement and pleaded guilty to one count of attempted child molestation and one count of sexual abuse, both designated as dangerous crimes against children and Class 3 felonies.

He faces is a maximum seven years in prison and a minimum of two and one-half years on each count. The court could impose a fine of up to $150,000 and Nicholls must register as a sex offender and have his DNA taken and recorded with law enforcement.

If not otherwise agreed, the sentencing judge can decide whether the prison time he imposes on the two charges will run concurrently or consecutively; the latter is sometimes called “stacking.” In that scenario, Nicholls will not begin serving the prison time imposed on one charge until after he served the time for the other. If the judge imposes concurrent sentences, the time Nicholls serves on the first charge will also satisfy the prison time imposed on the other. The judge will also determine any fine amount and the terms and length of probation, which could be lifetime probation with strict sex-offender terms.

When Nicholls was originally charged, he posted a secured bond of $125,000. Typically that means the accused comes up with 10 percent in cash, and pledges property (like a house) to secure the balance. It’s customary for the bondsman to pocket the cash as a fee once the bond is “exonerated” and the defendant is taken into custody. Both happened on the day he pleaded guilty.

Nicholls committed the crimes between November 15, 2008, through and including November 14, 2011, before he taught at Sequoia. The mother, who now lives out of state, says Nicholls befriended her, watched the family home and even babysat the victim. She believes he holds a Master’s degree in child psychology.

The sentencing is scheduled for May 3.

Bob Martinson/The Independent  

Levi Kitchens sits with her teddy bear during the Teddy Bear picnic and Grandparents Tea held at Round Valley Head Start. The group was celebrating the Week of the Young Child. For additional information and photos, see Page A17.

Courtesy Northland Pioneer College  

Apache County Chief Deputy Brannon Eagar.