HomeMy WebLinkAboutMemo from Frank Cassidy to Herb Kai and Jon Post RE: Participation in dispute resolution discussions and decisions with CMID and CWUA~. ~
MARANA
/I~
LEGAL DEPARTMENT
MEMORANDUM
To: Vice Mayor Herb Kai
Council Member Jon Post
From: Frank Cassidy, Town Attorney~'~ ~~~^;~~~4~yT°"" `~`'`~)
Subject: Advice Not to Participate as a ana Council Member in Dispute Resolution
Discussions and Decisions Involving Cortaro-Marana Irrigation District and
Cortaro Water Users' Association
Date: October 20, 2008
The Town of Marana is engaged in negotiations with Cortaro-Marana Irrigation District
(CHID) and Cortaro Water Users' Association (CWLTA) concerning the 1997
intergovernmental agreement among the three entities (the "1997 Agreement"). Specifically,
the parties are in discussion as to whether to dissolve, modify or replace the 1997
Agreement.
The Town Council will inevitably receive legal advice in executive session in connection with
the current dispute resolution discussions among the Town, CHID and CWUA. As board
members of the opposing parties, your participation in confidential Town of Marana
discussions would give CHID and CWUA an unfair advantage in the negotiations and
would breach your fiduciary duty as a member of the Marana Town Council. It would also
violate A.RS. § 38-504 (B), which (among other things) provides as follows:
A public officer or employee shall not disclose or use, without appropriate
authorization, any information that is acquired by the officer or employee in
the course of the officer's or employee's official duties and that is declared
confidential bylaw:
Without participating in Town executive sessions or legal advice in connection with C~vIID
and CWLTA, you will not have all of the information necessary to carry out your fiduciary
duties as a member of the Marana Town Council, so you should refrain from all
participation.
You may ask how this squares with this office's previous conflict opinion on this subject. In
a March 14, 2008 memorandum to Council Member Jon Post, this office concluded that
holding a position as a member of the board of directors of C1vIID and/or CWUA would
not preclude a Council Member from participating in Town Council deliberations and
{FQ0570 DOC /}
TOWN OF MARANA -LEGAL DEPARTMENT
11555 W. C[VIC CENTER DRIVE, MARANA, ARIZONA 85653
PHONE: (520) 382-1940 --FAX: (520) 382-1945
Vice Maur Herb Kai
C,oureczl Merr~r Jon Past
r 20, Zoos
Page 2
actions involving those entities under the Arizona conflict of interest statutes (A.RS.
§ 38-501 et sa3:), except in situations. where the decision in question would result in a direct
economic benefit or detriment to you or a relative and the direct economic benefit or
detriment does not involve public services you or your relatives receive from these entities
on the same terms and conditions as those received bythe public.
This office does not repudiate the March 14 conflict opinion, but concludes that it does not
cover the precise situation at issue here. One who accepts public office assumes the
responsibility of performing the duties given and imposed with complete fidelity and must
act only for the best interest of the public served by that office. Wjtllia~ u State ex n~
Mo3risor~ 83 Ariz. 34, 36, 315 P.2d 981, 982 - 983 (1957). This general rule is not limited to
situations involving a public officer's financial or ownership interests. Fiduciary obligations
to another parry may also require a public officer to recuse himself from participating in a
matter.
Your fiduciary obligations to imgation district customers as directors of CMD and CWUA
are much narrower than. and different from your obligations to the general public as Marana
Town Council members. This office advises you not to participate as Marana Town Council
members in discussions or decisions involving the current dispute among the Town, C1vIID
and CWUA.
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)
{F~570.DOC /}