Division One of the Arizona Court of Appeals will soon determine whether the city of Scottsdale violated the state’s gift clause law by awarding one swim team public pool discounted access at the expense of another – for over 10 years. Court of appeals judges Jennifer Perkins, Cynthia Bailey, and Maria Elena Cruz heard the case, Neptune v. Scottsdale, on Wednesday.
As reported previously, swim coach Joe Zemaitis had attempted for 13 years to gain access to Scottsdale’s public pools for his team, Swim Neptune. The city continually rebuffed Zemaitis’s attempts, instead granting access at discounted rates to another team, the Scottsdale Aquatic Club.
In a press release, Zemaitis explained that their efforts over the years were met with bureaucratic inconsistencies.
“Since 2007, we’ve been aggressively pursuing space in the Scottsdale pools,” said Zemaitis. “They seem to reinterpret the rules and rewrite the rules every time we are eligible under the criteria, they change them again to try to freeze us and our residents out, and it’s simply not
fair.”
Initially, Zemaitis apprised the Goldwater Institute of the situation. Their legal team roped in the American Freedom Network (AFN) – the institute’s network of pro-bono attorneys. AFN counsel sent the city of Scottsdale a letter to allow swim teams to bid on the pool space. This prompted the city to open up the pool space for a request for proposal (RFP): a formal solicitation bid.
However, the city of Scottsdale cancelled the RFP after it was apparent that the Scottsdale Aquatic Club would lose the bid. That was the final straw for Zemaitis. This past February, the Goldwater Institute filed suit against the city.
In a statement, the Goldwater Institute asserted that the city of Scottsdale had created a monopoly – giving gifts of discounted rates and pool access to the Scottsdale Aquatic Club in violation of the state’s gift clause – then violated their own procurement code in their handling of
the RFP.
“This monopoly violates Arizona’s Gift Clause, which prohibits government from giving gifts to private entities. That’s exactly what the city of Scottsdale is doing here,” asserted the Goldwater Institute. “The deal was also done in violation of the city’s own procurement code. Scottsdale’s unlawful actions against Swim Neptune Foundation are preventing the swim club’s Scottsdale families from using facilities that they’re already paying for with their taxes.”
During Wednesday’s hearing, the city’s attorney, Eric Anderson, challenged that no city actions constituted a gift clause violation. Anderson argued that cancellation of the RFP contract and the lane fees weren’t gift clause violations.
“What is the claim here? What is Neptune asking this court to do? Are they asking for an injunction, a mandamus?” questioned Anderson.
Anderson argued further that the issues of procurement and gift clause abuses are separate.
Even so, Anderson claimed that the city hadn’t violated any procurement processes. He said that the acting procurement director merely noticed that the process had an error – that the committee should’ve scored the procurement bids entirely and not partially.
The panel of judges appeared confused by Anderson’s arguments. They wondered at the apparent conflicting language between the city’s method for scoring and the RFP (request for proposal).
Judge Perkins stopped Anderson multiple times to note that the court wasn’t so much concerned about the why behind the RFP cancellation, but the fact that it occurred at all.
“Isn’t Neptune saying this cancellation of the RFP worked to give a special advantage to a private interest, and that is why the city cancelled the RFP because if it hadn’t cancelled the RFP then the winning bidder would’ve been the non-preferred entity […] You know, this looks hinky,” said Perkins. “You had a relationship with one entity, you thought that entity was going to win the bid, when it turned out that – at least in the back and forth that we see according to the record – that the math was wrong, and when the math was correct and somebody else was going to get the bid, then we cut off the process. That the big picture is the articulated violation. The question of how we calculate consideration and everything tells us whether or not they’re correct about the violation. That’s not what is the violation.”
As a rebuttal, Riches clarified that the gift clause violation at hand is the city’s subsidization of one private entity. He called for declaratory relief, and a mandamus on the city.
He emphasized the fact that Swim Neptune was the mathematical winner of the city’s procurement evaluation – not Scottsdale Aquatic Club. This would’ve been cause to award Swim Neptune the bid, yet Scottsdale didn’t. Instead, they threw out the RFP.
Riches warned that this case would prove to be the basis for other cases around the state concerning government’s preferential treatment and relationships with private entities.
“If the city of Scottsdale can do this with public resources – [then] they can do this throughout the state,” asserted Riches.
After the hearing, Riches told AZ Free News in a statement that they were pleased with the court’s handling of the case.
“The Gift Clause prohibits the use of public resources by private parties unless certain protections are met. Here, the City of Scottsdale set up a public procurement process for a valued public asset – public swimming lanes – but then arbitrarily tossed the results when it did not like the outcome. That is unlawful and costs Scottsdale citizens $284,000 every year,” explained Riches. “We were glad to see the court of appeals grapple intelligently with these serious questions, and we are hopeful the court will stop the city’s taxpayer abuse in this case, and discourage future abuse going forward.”
The judges indicated that they would publish their ruling soon.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
Contrary to popular belief, proof of citizenship isn’t necessarily required for Arizona voters in federal elections. An individual may choose to be a “federal-only” voter, which is what over 11,600 people did in Arizona during the 2020 election – nearly 1,150 more votes than what President Joe Biden received to win the state. Federal-only voters may later provide their proof of citizenship to vote in state, county, and local elections as well – but they never have to for federal elections.
A majority of those 11,600 federal-only votes came from Maricopa County: over 8,100 total. Nearly 4,500 of those votes were from standard federal-only voters. The remaining 3,630 came from Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) federal-only voters. UOCAVA voters have proven citizenship but may only cast federal-only ballots because of their indefinite overseas status.
The next-largest total came from Pima County with just under 2,000 federal-only votes. Their public report didn’t distinguish the standard and UOCAVA voters.
We were unable to obtain federal-only vote totals from Pinal County by press time.
Yavapai County had nearly 260 federal-only votes – no distinction was made between standard and UOCAVA voters on their public report. Yuma County had 169 federal-only ballots cast. Coconino County informed AZ Free News that it had nearly 930 federal-only votes: over 330 standard, and over 590 UOCAVA votes.
We were also unable to obtain the totals for federal-only ballots cast in the following counties by press time: Mohave, Cochise, Navajo, Apache, Gila, and Graham.
For the 2018 midterm elections, the secretary of state’s office reported that only about 1,700 people cast federal-only ballots.
Prior to 2018, counties weren’t required to make the number of federal-only votes cast public. While she was still a representative, State Senator Kelly Townsend (R-Mesa) changed that by introducing and passing A.R.S. §16‐161(B).
Despite this law, AZ Free News had to reach out to some of the counties to learn how many federal-only ballots were cast there in the election. Not all of the counties are publishing the total number of federal-only registered voters and ballots cast per state law.
Townsend told AZ Free News that she introduced A.R.S. §16-161(B) when she encountered some pushback from Maricopa County over receiving the numbers of registered federal-only voters. They wanted Townsend to file an open records request (also called a Freedom of Information Act [FOIA] request). This frustrated Townsend, but she respected their request.
“What’s the effort of trying to obscure this? You’re causing me to believe there’s something nefarious going on because I had to do all these backflips to try to get these numbers,” said Townsend.
Even after Townsend complied, she told AZ Free News that the numbers didn’t add up. Townsend took the next logical step. She introduced a bill requiring all counties to make the number of federal-only ballots cast publicly available.
As of last year, there were around 36,000 people registered as federal-only voters in Arizona.
The number of federal-only voters hasn’t always been this large. In fact, it was 26 to 36 times smaller in 2017. Townsend said that only around 1,100 people were registered as federal-only voters back then. This concurs with the reports that around 1,700 people cast federal-only ballots in 2018.
According to Townsend, the federal-only option is tantamount to an honor system.
“It begs the question: if there are 36,000 people in the state of Arizona that can’t prove they exist – through birth certificates, social security numbers, [etc] – what’s wrong with our vital statistics department? I have a hard time believing that our vital statistics department can’t get 36,000 Americans their birth certificates. What’s wrong with the Social Security Department that there are 36,000 people that can’t have their identity verified?” asked Townsend. “I think the bigger argument is why are we so inept. If they’re an American, they deserve to be able to vote an entire ballot. What are we doing wrong that we can’t get them to vote on an entire ballot?”
Townsend explained further that once an individual registers as a federal-only voter, they can elect to be on the mail-in ballot system. She says that she will be introducing legislation next year to tighten up the identification requirements for federal-only voters, such as requiring a government-issued form of identification rather than allowing merely any document displaying a name and address.
“We can at least change the ID to make sure it’s not just a bank statement,” asserted Townsend. “Otherwise, it’s going to take an act of Congress to change it.”
11,700 voters is a lot – especially considering Biden’s margin of victory. However, these ballots weren’t included in the scope of the ongoing audit. Townsend confirmed that she’d asked “multiple times” for the voters behind those ballots to be examined – but her requests were reportedly ignored.
State Representative John Kavanagh (R-Fountain Hills) also tweeted this information after one of his constituents emailed him to ask.
“A constituent emailed asking me how many federal election only ballots were cast in AZ. These are ballots cast by people who could not prove citizenship,” wrote Kavanagh. “There were 11,604 federal only ballots cast. Biden won the election by 10,457. Makes you wonder.”
Kavanagh explained to AZ Free News that his legislative staff had called upon the secretary of state’s office to determine how many federal-only ballots were cast. The secretary of state’s office didn’t have that information readily available, and had to collect data from each county to determine the total number of federal-only ballots cast.
“I was shocked to discover that there were more federal-only ballots cast than the federal margin of victory,” said Kavanagh. “It could’ve affected the election.”
Like Townsend, Kavanagh said he is preparing to strengthen the verification procedures for federal-only voters.
“I’m investigating the procedures for checking somebody’s citizenship. I presume it would be done easily[.] If we can check people based on their name and address – we can actually go back and check how many of those people were actually citizens,” said Kavanagh. “We can’t prevent federal ballots, but we can let them know that if they’re lying we can come after them and prosecute them.”
From Arizona Secretary of State Katie Hobbs’s office:
A person is not required to submit proof of citizenship with the voter registration form, but failure to do so means the person will only be eligible to vote in federal elections (known as being a “federal only” voter). A “federal only” voter will become eligible to vote a “full ballot” in all federal, state, county and local elections if he or she later provides valid proof of citizenship to the appropriate County Recorder’s office.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com
The Association of American Physicians and Surgeons (AAPS) challenged the American Medical Association’s (AMA) recent take that ivermectin should no longer be prescribed for COVID-19.
In a letter to AMA President Gerald Harmon published Saturday, AAPS Executive Director and Tucson native Jane Orient argued that the AMA was contradicting the professional opinion of many respected physicians – those that are writing the average of 88,000 prescriptions a week for ivermectin. Orient cited 63 controlled studies that favor the use of ivermectin in treating COVID.
Orient also cited the Tokyo Medical Association (TMA), who issued a call to action in February for all their physicians to prescribe ivermectin to treat COVID-19. She asked AMA if they could answer the following questions about their rationale for opposing ivermectin:
What are the criteria for advocating that pharmacists override the judgment of fully qualified physicians who are responsible for individual patients?
What are the criteria for forbidding off-label use of long-approved drugs, which constitute at least 20 percent of all prescriptions?
On what basis does AMA demand use only within a clinical trial for ivermectin, but call for virtually universal vaccination outside of controlled trials, despite FDA warnings of potential cardiac damage in healthy young patients, and no information about long-term effects?
The AMA issued their recommendation in a joint statement with the American Pharmacists Association (APhA) and the American Society of Health-System Pharmacists (ASHP) last week. The statement noted that they were alarmed by the 24-fold increase in ivermectin prescriptions over the course of the pandemic.
Recently, famed podcaster and comedian Joe Rogan was prescribed ivermectin as one of several treatments for his COVID-19. Rogan also reported using monoclonal antibodies, Z-Pack, and Prednisone. Within 5 days, Rogan went from fully symptomatic to testing negative.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
The University of Arizona (UArizona) ranked high for its number of Diversity, Equity, and Inclusion (DEI) staff compared with 65 other universities. Arizona State University (ASU) ranked toward the bottom. This data was published in a study by The Heritage Foundation, a conservative think tank in D.C.
The data was organized into four categories: the total number of DEI personnel at the university, the ratio of DEI personnel to American Disability Act (ADA) personnel, the average number of DEI personnel per 100 faculty members, and the ratio of DEI personnel to history faculty.
Out of all 65 universities, UArizona ranked #13 for having 59 total DEI personnel, #54 for their nearly two-to-one DEI personnel per ADA faculty ratio, #19 for their average number of nearly 4 DEI personnel per 100 faculty members, and #7 for their over two-to-one DEI personnel/History faculty ratio.
By comparison, ASU ranked #49 for having 28 total DEI personnel, #63 for their one-to-one DEI/ADA personnel ratio, #58 for their average number of two DEI personnel per 100 faculty members, and #48 for their one-to-one DEI personnel/History faculty ratio.
The Heritage Foundation only catalogued the 65 universities within the Power 5 conferences – those athletic conferences with the nation’s top football programs – which is why they didn’t include Northern Arizona University (NAU).
In a summary report of the data, The Heritage Foundation found that the average university sampled had more than 45 people with formal DEI promotion goals, 4.2 times more DEI staff than student disability accommodation staff, 1.4 times more DEI staff than professors in corresponding history departments, and 3.4 people working to promote DEI for every 100 tenured or tenure-track faculty members.
Three schools nabbed the number-one ranking for their number of DEI personnel. The University of Michigan (UM) earned two number one slots for having 163 DEI personnel total, nearly 15 DEI personnel for every one ADA faculty member. New York’s Syracuse University (SU) earned a number one slot for having over 7 DEI personnel per 100 faculty members. Lastly, Georgia Tech (GT) earned a number one slot for having over 3 DEI personnel for every history faculty member.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
Representatives Andy Biggs (R-AZ-05), David Schweikert (R-AZ-06), and Debbie Lesko (R-AZ-08) are original cosponsors on legislation to award Congressional Gold Medals to the 13 service members killed in Kabul last week. The Congressional Gold Medal is widely considered the highest congressional expression of appreciation on behalf of the nation.
The 13 service members were Johanny Rosario Pichardo, Nicole Gee, Darin Hoover, Hunter Lopez, Daegan Page, Humberto Sanchez, David Espinoza, Jared M. Schmitz, Rylee Mccollum, Dylan Merola, Kareem Nikoui, Maxton Soviak, and Ryan Knauss.
Representative Lisa McClain (R-MI-10) introduced the legislation on Tuesday. As McClain noted in her legislation, the 13 service members’ deaths marked the single deadliest day in the Afghanistan war in over 10 years.
“The American service members went above and beyond the call of duty to protect citizens of the United States and our allies to ensure they are brought to safety in an extremely dangerous situation as the Taliban regained control over Afghanistan,” read the legislation. “The American service members exemplified extreme bravery and valor against armed enemy combatants. The American service members dedicated their lives and their heroism deserves great honor.”
If awarded, the medals would be given to the Smithsonian Institution to memorialize the service members and the day of the Kabul attack: August 26.
A total of 150 other representatives have signed onto the legislation: 129 Republicans, and 21 Democrats.
The representatives to sign on were Don Young (R-AK), Mo Brooks (R-AL), Jerry Carl (R-AL), Gary Palmer (R-AL), Barry Moore (R-AL), Rick Crawford (R-AR), Bruce Westermann (R-AR), Ken Calvert (R-CA), Sara Jacobs (D-CA), Tom McClintock (R-CA), Young Kim (R-CA), Doug LaMalfa (R-CA), Mike Garcia (R-CA), David Valadao (R-CA), Mike Levin (D-CA), Pete Aguilar (D-CA), Jay Obernolte (R-CA), Jim Costa (D-CA), Doug Lamborn (R-CO), Carlos Gimenez (R-FL), Stephanie Murphy (D-FL), Greg Steube (R-FL), Matt Gaetz (R-FL), Al Lawson (D-FL), Gus Bilirakis (R-FL), Kat Cammack (R-FL), Scott Franklin (R-FL), Brian Mast (R-FL), Darren Soto (D-FL), Maria Salazar (R-FL), Byron Donalds (R-FL), Marjorie Taylor Greene (R-GA), Jody Hice (R-GA), Rick Allen (R-GA), Drew Ferguson (R-GA), Buddy Carter (R-GA), Barry Loudermilk (R-GA), Lucy McBath (D-GA), Ashley Hinson (R-IA), Mariannette Miller-Meeks (R-IA), Randy Feenstra (R-IA), Mike Simpson (R-ID), Adam Kinzinger (R-IL), Rodney Davis (R-IL), Mike Bost (R-IL), Jim Banks (R-IN-), Larry Buschon (R-IN-), Andre Carson (D-IN), Russ Fulcher (R-IN), Jackie Walorski (R-IN), Victoria Spartz (R-IN), Trey Hollingsworth (R-IN), Greg Pence (R-IN), Tracey Mann (R-KS), Jake LaTurner (R-KS), Brett Guthrie (R-KY), Garret Graves (R-LA), Julia Letlow (R-LA), Seth Moulton (D-MA), Bill Keating (D-MA), Andy Harris (R-MD), Jared Golden (D-ME), Bill Huizenga (R-MI), Peter Meijer (R-MI), Tim Walberg (R-MI), John Moolenaar (R-MI), Elise Slotkin (D-MI), Tom Emmer (R-MN), Ann Wagner (R-MO), Blaine Luetkemeyer (R-MO), Vicky Hartzler (R-MO), Jason Smith (R-MO), Bennie Thompson (D-MS), Trent Kelly (R-MS), Steven Palazzo (R-MS), Michael Guest (R-MS), Don Bacon (R-NE-), Jeff Fortenberry (R-NE), Adrian Smith (R-NE), Madison Cawthorn (R-NC), Richard Hudson (R-NC), Greg Murphy (R-NC), David Rouzer (R-NC), Ted Budd (R-NC), Dan Bishop (R-NC), Chris Pappas (D-NH), Chris Smith (R-NJ), Yvette Herrell (R-NM), Mark Amodei (R-NV), Ruben Gallego (D-NV), Steven Horsford (D-NV), Andrew Garbarino (R-NY), Nicole Malliotakis (R-NY), Elise Stefanik (R-NY), Claudia Tenney (R-NY), Chris Jacobs (R-NY), Lee Zeldin (R-NY), Joseph Morelle (D-NY), Steve Chabot (R-OH), Warren Davidson (R-OH), Bob Gibbs (R-OH), Bob Latta (R-OH), Dave Joyce (R-OH), Mike Turner (R-OH), Jim Jordan (R-OH), Anthony Gonzalez (R-OH), Stephanie Bice (R-OK-), Tom Cole (R-OK), Mike Kelly (R-PA), Guy Reschenthaler (R-PA), Lloyd Smucker (R-PA), Brian Fitzpatrick (R-PA), G.T. Thompson (R-PA), Jennifer Gonzalez-Colon (R-PR), Joe Wilson (R-SC), Ralph Norman (R-SC), Dusty Johnson (R- SD), Diana Harshbarger (R-TN), Scott DesJarlais (R-TN), Chuck Fleischmann (R-TN), David Kustoff (R-TN), Tim Burchett (R-TN), Lance Gooden (R-TX), August Pfluger (R-TX), Randy Weber (R-TX), Roger Williams (R-TX), Beth Van Duyne (R-TX), Filemon Vela (D-TX), Vicente Gonzalez (D-TX), Pat Fallon (R-TX), Blake Moore (R-UT), Burgess Owens (R-UT), John Curtis (R-UT), Bob Good (R-VA), Morgan Griffith (R-VA), Rob Wittman (R-VA), Ben Cline (R-VA), Elaine Luria (D-VA), Jaime Herrera-Beutler (R-WA), Dan Newhouse (R-WA), Cathy McMorris Rogers (R-WA), Bryan Steil (R-WI), Scott Fitzgerald (R-WI), Mike Gallagher (R-WI), Glenn Grothman (R-WI), David McKinley (R-WV), Carol Miller (R-WV), Alex Mooney (R-WV), and Liz Cheney (R-WY).
