WHITE MOUNTAIN LAKE — At least two members of the White Mountain Lake Fire District board said they “wouldn’t mind” being sued by the media to force the release of a taxpayer-funded investigation into the district’s suspended-with-pay fire chief.
For the second time this month, the board declined to release the results of an external investigation into the alleged misconduct of Fire Chief Jerry McGraw, who is accused by current and former firefighters of using fear and intimidation tactics against them in the workplace, among other things. The investigation was conducted and completed by Green & Baker, a law firm in Scottsdale.
McGraw, was placed on non-disciplinary paid administrative leave by the White Mountain Lake Fire District board during a special meeting Oct. 24, 2017.
The Independent and other media outlets have requested a copy of the investigation report and have been denied.
The fire board originally voted 4-0 during a special meeting Feb. 2 to deny the public records request “until the process is complete.” Tuesday’s vote was more of a show of defiance, essentially goading any and all challengers to file a lawsuit. While they were at it, the board also seemingly downplayed the roles of the state’s ombudsman citizens’ aide — a state official appointed by the Legislature that works on behalf of the state’s citizens — and Attorney General Mark Brnovich, who are reportedly trying to persuade the WMLFD board into transparency.
Chairman Bob Riester and board member Carl Erdmann are maintaining a cavalier stance, seeing the requests as a challenge to their and the board’s “authority.”
“It’s a decision right now whether we want to fold to the newspaper or other entities that requested copies of (the report), or whether we just hold, like we voted on before, not to release it until this whole thing is settled,” Riester said.
“The ombudsman is not a lawmaker, he’s not a law enforcer,” Erdmann said. “All he can do is act on behalf of people in the state.”
An ombudsman has broad powers to investigate and make recommendations, but no authority to make or reverse a decision.
Erdmann also publicly doubted that Brnovich would be fast enough to jump into the situation.
“How long does it take for the attorney general to react to, to act on, an ombudsman’s (recommendation)?” he asked. “It can take months.”
Board member Carole Miller, however, expressed concern about the board being legally bound to release the report, which was paid for with White Mountain Lake taxpayer dollars. Miller said she preferred either going into executive session to discuss the report’s release or consulting the board’s attorney, William Whittington, who was not present for Tuesday’s meeting, for further advice.
“Are we going to pay for legal services to defend ourselves?” she asked. “I don’t want the newspaper (The Independent) or Channel 12 (Phoenix TV station KPNX) suing us for the release of these documents.”
“Well, I don’t mind that,” Riester said.
“I don’t mind that at all,” Erdmann emphatically chirped.
Miller was not amused. “Really? Then we have to pay Bill Whittington to defend our position there? … I am not in for that at all.”
“I was in superior court (Monday),” Riester said. “Spent about three or four hours (in court).”
Erdmann told Miller that “if the newspaper were to sue, (Whittington) promised to send us authority for withholding that document.” He then began quoting from an email reportedly sent from Whittington to the board. “We’re also still looking at the cases to support the board’s decision to withhold disclosure should it decide to do so.”
Dan Garone, an attorney who works for the Ombudsman Citizens’ Aide office, said the odds of the fire district coming out on top in any public records lawsuit would be slim, but added that their explanation is “reasonable enough” that it would advance to court.
“At this point, it would be better to have the matter decided by a judge,” he said. “If there is a state’s interest — some sort of government function or other interest that would be so damaged by disclosure that it outweighs the collective public’s right to see it, the agency can withhold the record.”
He added that the withholding agency would bear the burden of proof to defend its action and the challenger would be able to address and attempt to tear down the argument.
“At that point, if the offending agency has met its burden of proof, it becomes a matter of whose argument is better,” Garone said. “If the agency doesn’t have a valid argument, they will be in a world of hurt.”
Garone added that the current public records battle with the fire board is unique because “it hasn’t often gone before the courts.”
“Public records denials come up fairly often in that agencies withhold records on privacy and state’s interest grounds, but it’s not often that they get challenged in court,” he said. “When push comes to shove, most people don’t want to bother with paying a lawyer and going to court and hoping they can recover for attorney’s fees.”
While the board may not be concerned about a public records court battle, the mood changed dramatically when Erdmann began talking about another possible legal action.
“Now, (Snowflake attorney Joseph Holland) indicated that his client was upset about the idea of having the report released. That’s enough right there,” he said.
“What’s enough?” Miller asked.
“The client was upset,” Erdmann said, referring to McGraw. “The attorney is indicating that the client may take an action. … So, let’s be ready for retaliation (if the board publicly releases the investigation results).”
According to the Arizona Attorney General’s website, upsetting a client is not among list of legal reasons to deny a public records request or to make a record confidential and non-disclosable.
According to Holland via email from McGraw, they are invoking the “work-product doctrine,” which protects materials prepared in anticipation of litigation, usually invoked to prevent its discovery by opposing counsel. Neither Holland nor McGraw could be reached for further comment by press time.
According to the attorney general’s website, opinions it has made have consistently supported the notion that “agencies should err on the side of disclosure.” The Arizona Supreme Court, meanwhile, has held that a record may only be withheld if a countervailing privacy or confidentiality interest or the “best interests of the state” outweighs the public’s right to know – and the burden is on the party trying to withhold documents to prove the harm that would follow release.
But Riester continued to stand his ground, saying the report is confidential and that the board is not yet finished with it.
“What is finished?” Miller asked, “because in some terms, (the investigative report) is finished because it’s done. In other circles … the investigation is over when we make a final decision.”
Therein lies another issue: Making a decision, aside from unanimously deciding to keep the investigative report a secret, has been a difficult task for the WMLFD board. Several votes to decide McGraw’s employment future have been deadlocked at 2-2. Legally, it is a five-member board, but has operated without a tiebreaker with only four members for almost two years. The last time the board met with its designated five members was March 15, 2016.
Navajo County officials say they were notified only recently about the situation and are working to fill the vacancy.