Ruling Expected Soon On DPS Lawsuit In Fingerprint Clearance Card Dispute

A latent fingerprint [Photo courtesy FBI]

By Terri Jo Neff

A Maricopa County judge is expected to rule soon on one of two lawsuits involving the authority of the director of the Arizona Department of Public Safety (DPS) to refuse to sign a fingerprint clearance card for a Chandler man with a history of questionable conduct with children.

The lawsuits involve an effort by Brett James Smith to obtain the clearance card, which is required for many paid and volunteer positions in which adults work with children. Arizona currently lists 52 circumstances under which a fingerprint clearance card is necessary as a condition of licensure, certification, employment, or volunteer activity.

In 2019, DPS denied Smith’s application for a card due to his criminal history in multiple states. Smith, who had changed his name from Brett James Zagorac, then appealed to the Arizona Board of Fingerprinting. The board can approve two types of exceptions, including a good-cause exception for individuals whose fingerprint clearance card was denied or suspended by DPS.

The fingerprint board members represent the Department of Child Safety, the Department of Economic Security, Department of Health Services, Department of Juvenile Corrections, Arizona State Board of Education, and the Administrative Office of the Courts. They approved Smith’s good cause exception in January 2020 after a recommendation from a state administrative law judge (ALJ).

But in April 2020, Smith sued DPS Colonel Heston Silbert when the director refused to sign the card despite the board’s exception. That case is on hold while a special action lawsuit filed by Silbert in June is being heard by Judge Pamela Gates.

“He’d been arrested no less than, that we know of, 10 times, for crimes involving inappropriate touching and interactions with children, up to and including child molestation, and had actually done some jail time over it,” Silbert said after filing the lawsuit. “I have a responsibility to the citizens of Arizona, and certainly to the children of Arizona, to do my very best to ensure they’re safe.”

Smith’s testimony to the ALJ purportedly included comments that his previous conduct -and contact- with children was not of a sexual nature nor done for a sexual motivation.  A statement later released by an attorney for Smith accused DPS of “smearing Mr. Smith’s name in the media.”

Silbert’s lawsuit contends the board exceeded its authority in granting Smith’s exception. But in a twist, the board is now arguing that Smith’s application should be reconsidered due to new concerns that he presented false or misleading information and even lied to the ALJ during testimony.

Gates is awaiting final written arguments from the parties so she can rule next month on two pending motions which could lead to the dismissal of Smith’s initial lawsuit. Silbert is represented by attorney Lawrence Wulkan of Stinson LLP, an arrangement necessitated by the fact the Arizona Attorney General’s Office usually provides legal advice for the fingerprinting board.

After Silbert’s lawsuit was announced in June, the Chandler Police Department received six complaints concerning Smith. It has also been reported that the Maricopa County Sheriff’s Office has opened its own investigation.

One of the Chandler complaints involves a parent who hired Smith last spring to work as a tutor with her young son. Smith was no longer working with the boy in June when the mother heard about Silbert’s lawsuit.

The mother provided investigations with “nanny cam” video of all the times Smith was in the family’s home. At least one video revealed an incident in which Smith made physical contact with the boy, the mother reported.

The second exception the fingerprinting board can approve involves the Central Registry, a set of databases maintained by the Arizona Department of Child Safety of individuals who have hadsubstantiated allegations of child abuse or neglect.” An applicant disqualified for a clearance card based on a Central Registry report may apply to show the board that the applicant is rehabilitated and not a recidivist.