HomeMy WebLinkAboutHerb Kai- 9/16/2008 - Ordinance 2008.21 & all wastewater matters~~'`~
MARANA
STATEMENT OF AGENDA CONFLICT
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For the following reason(s):
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Signature
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Date
MARANA
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LEGAL DEPARTMENT
MEMORANDUM
To: Vice Mayor Herb Kai ~
From: Frank Cassidy, Town Attorn ~ ~~ y
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Subject: Whether your brother's sludge ontra~f with Pima County creates a conflict of
interest that precludes your participation in wastewater discussions
Date: September 16, 2008
Pima County pays your brother John to take delivery of sludge produced from Pima County
wastewater treatment facilities. You have asked for a formal opinion on whether this creates
a conflict of interest that would prohibit your participation in Marana wastewater discussions
or decisions. We conclude that it does.
The Arizona conflict of interest statutes' prohibit you from participating in any Town action
or decision in which you have or any relative of yours has a "substantial interest"-a direct
or indirect pecuniary or proprietary (that is, financial or ownership) interest. The only
financial or ownership interests that are not substantial interests are speculative interests and
remote interests. Your relatives' financial or ownership interests are treated as your own for
purposes of the conflict of interest statutes.
The first step is to determine whether Marana Town Council wastewater decisions have a
direct or indirect effect on your brother's sludge contract.
Marana's wastewater decisions affect Pima County's wastewater operations, but they do not
directly affect your brother's sludge contract with Pima County. If successful, Marana's
wastewater litigation and negotiations with Pima County will lead to Marana's separate
ownership of the wastewater collection and treatment system in Marana. This will reduce the
amount of wastewater Pima County collects and treats (and the amount of sludge it
produces), and the size of its customer base and service area, but Pima County will continue
to have ample sludge and financial resources to continue its contract with your brother.
Marana's wastewater decisions indirectly affect your brother's sludge contract. Treating his
interest as yours, the question is whether it is a conflict of interest to participate in a decision
that adversely affects a party with whom you have a contract.
1 Arizona's conflict of interest statutes are found at A.R.S. ~~ 38-501 through 38-511.
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TbWN OF MARANA ~ LEGAL DEPARTMENT
11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653
PHONE: (520) 382-1940 ~ FAQ: (520) 382-1945
Vice Mayor Herb Kai
Conflict of Interest Opinion
September 76, 2008
Page 2
The second step is to determine whether your brother's sludge contract is a remote or
speculative interest. Remote and speculative interests are not conflicts of interest. An interest
must fall within one of ten statutorily defined types to be "remote."2 Your brother's sludge
contract does not fall within one of these ten defined types and is therefore not remote. It is
also not the type of theoretical, non-financial, or "mere possible contingent" interest that
would be considered a speculative interest.3
Based on the foregoing analysis, we conclude that the interest in question is an indirect
financial or ownership interest that falls within the "substantial interest" definition and
creates a conflict of interest.4 You should refrain from participating in Marana Town Council
actions involving wastewater, and you should disclose this interest in the conflict of interest
file maintained by the Town Clerk.
Do not hesitate to contact me if you would like to discuss this directly.
xc: Mayor and Council
Gilbert Davidson, Town Manager
Deb Thalasitis, Assistant Town Manager
Jocelyn Bronson, Town Clerk (for conflict of interest file)
2 "Remote interest" is defined at A.R.S. ~ 38-502, paragraph 10.
s Three Arizona cases discuss speculative interests: Hughes v. forgenson, 203 Ariz. 71, 50 P.3d 821 (2002)
(Graham County Sheriff Hughes's participation in his sister's arrest and investigation for possession of drug
paraphernalia did not constitute a conflict of interest because his only financial interest was speculative, the
court stating that "the record does not show that Hughes stands to lose more than perhaps the votes of his
constituents if the State proves that he interfered in his sister's case or if his sister is convicted of possession
of drugs"); Arizona Farmtvorkers Union v. Agricultural Employment Kelation.r Board, 158 Ariz. 411, 762 P.2d 1365
(App. 1988) (board member's employment by a company that was a member of the Arizona Citrus Growers
did not create a conflict of interest that would prohibit him from participating in the Board's consideration of
an unfair labor practice complaint by the Arizona Farmworkers Union, even though the union's success
might cause grower costs to rise, leading to less profitability and a potentially lower salary for the board
member; the court held that these alleged interests fell within a "remote interest" category and were
speculative); Yetman v. Naumann, 16 Ariz.App. 314, 492 P.2d 1252 (1972) ("interest" for purposes of conflicts
of interest does not include a mere abstract interest in the general subject or a mere possible contingent
interest).
' In similar situations involving this type of indirect financial interest, the Arizona Attorney General has
uniformly determined that the public officer or employee had a conflict of interest. Op.Atry.Gen. No.
I03-005 (school district governing board member employed by a utility must refrain from participating in
discussions or decisions concerning the choice of power to district schools that could be served by his
employer); Op.Atry.Gen. No. I83-111 (school district administrator who is also a salaried employee of a
nonprofit corporation which rents district facilities may not participate in decisions involving contracts
between the district and the corporation); Op.Atry.Gen. No. I83-098 (state liquor board member had a
conflict of interests precluding participation in a board decision concerning a liquor license applicant who was
a client of a bank of which the member was chairman of the board of directors); Op.Atry.Gen. No. I79-263
(department of transportation has a conflict precluding participation in a decision involving a relative's
employer); Op.Atry.Gen. No. 70-5 (a county supervisor who prepares landscape plans and specifications for a
company that deals with the county has a conflict of interest that precludes his involvement in county
dealings with the company).
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