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 had “substantiated 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.
Cochise County Sheriff Mark Dannels has taken part in a number of media interviews in recent weeks about the growing influx of illegal border crossers coming in from Mexico, and it is clear who he blames for the uncontrolled public health and public safety situation getting worse by the day.
“The border patrol is no longer securing the border,” Dannels told KFYI’s James T. Harris on Monday. “What they’re doing is taking care of children and adults.”
Dannels told Harris that the White House is using a “very kind choice of words” when discussing the number of people trying to cross the 1,954-mile international border in the last few weeks. Words, the sheriff says, which are “in conflict with what is truly going on at the border.”
And that, the sheriff says, requires calling the situation at the country’s southwest border what it is – a crisis, not “a challenge” as a spokesperson for President Joe Biden recently called it.
According to Dannels, recent reports place the number of people trying to cross the southern border at 2,500 to 4,000 per day, with 400 to 500 of them being children. The Department of Homeland Security (DHS) expects those numbers to hold steady for several weeks before it spikes as more migrants from South America make it through Central America and Mexico.
Dannels told Harris that he has seen no logistical support nor mitigation efforts coming out of Washington D.C., which he believes should concern all Americans, not just those in border states.
“When you fail to recognize a problem and you avoid it or ignore it, it only gets worse,” he said. “What happens on the southwest border doesn’t stay here, it migrates throughout the United States into communities throughout.”
Cochise County’s southern boundary shares more than 80 miles of the international border. Dannels has installed hundreds of surveillance cameras focused on the border and other remote areas of the county to supplement those in use by DHS agencies such as Customs & Border Protection and U.S. Border Patrol.
Earlier this month Dannels was interviewed live on Fox & Friends about Biden’s order in January which halted border wall construction, including one section of old fence the sheriff said was recently seeing “five or six groups” coming through every day.
The sheriff noted he and other sheriffs along the border were not briefed in advance about Biden’s wall construction order. There has also been a deafening silence about the border crisis from Senators Mark Kelly and Kyrsten Sinema, as well as national public health officials.
“Nobody is talking about what’s going on at the southwest border when it comes to the health pandemic in this country,” Dannels said during a March 5 interview on Fox & Friends. “And then you look at the public safety aspect of this, it’s upsetting.”
It is the same message Dannels shared a few days earlier in an interview with Fox News’ Your World program and then again March 8 on Fox’s American’s Newsroom show.
“Talking to my federal partners, talking to local law enforcement, talking to our health department – I mean when it comes to public safety, national security, when it comes to the health pandemic, we’re in trouble –we’re in serious trouble and this all started under the word politics,” he said March 8.
“When this administration failed to engage with my governor, my attorney general, our health departments, our emergency services coordinator- along with other border states and beyond- that’s when it started. So we’re trying to pick up the pieces right now.”
AZ Free News has confirmed Dannels is being suggested as a possible Republican candidate in 2022 when Rep. Ann Kirkpatrick’s seat in Congress comes open. Dannels said Monday he has been approached about running for various political offices, but he has not considered such a move as his current term runs through 2024.
A bill introduced by nearly one dozen legislators to require public bodies to provide the public with more information before discussing public matters in private under the guise of seeking “legal advice” is being strongly opposed by the very public officials who can currently conduct many discussions in secret.
Rep. Beverly Pingerelli (R-LD21) and 10 co-sponsors of HB2804 want to amend two statutes related to public meetings, executive sessions, and legal advice. Their bill passed the House last week and is now assigned to two Senate committees where its attempt to ensure more transparency in public meetings has garnered resistance from nearly every city and town, several elected school superintendents, and the County Supervisors Association of Arizona.
A public body is allowed by law to hold an executive session for the discussion, consideration, or consultation of only nine types of matters. One is to obtain “legal advice with the attorney or attorneys of the public body.”
Some officials claim they need flexibility at any time during a public meeting to move into a non-public executive session to obtain legal advice on any item on the agenda. That is why many public bodies utilize a generic disclaimer on every meeting agenda advising that the members may convene an executive session during the meeting with no further notice.
However, many citizens and public-transparency watchdogs have complained in recent years that public bodies are misusing the legal advice clause to privately discuss a variety of issues which could -and should- be discussed in public.
And that is where HB2804 comes in. The first thing it does is limit the situations in which legal advice can be used as reason for an executive session to the other eight subject matters permitted to be discussed in an executive session.
The bill would also require meeting agendas that include specific notice of any executive session under the legal advice clause to note which of the eight subject matters apply to the agenda item.
Such changes are long overdue, according to Diane Douglas, who served as Arizona’s Superintendent of Public Instruction from 2015 to 2018.
“The legal advice clause of the Executive Sessions statute -or the ‘get out of jail free’ clause as I call it- undermines the intent of Open Meeting Law,” Douglas told Arizona Daily Independent. “It should only be used very sparingly and only when a public discussion will compromise a negotiation, settlement, or an employee’s legally protected privacy.”
But Douglas says various public boards, commissions, committees, districts, as well as cities, towns, and counties currently end up discussing matters of public interest behind closed doors by “dragging an attorney in” even if the matters would otherwise be required to be discussed in public.
“Often times legal advice or discussion, that will not otherwise compromise a decision of the board, is of equal interest to the public being served,” Douglas said.
Douglas also notes there is already a simple solution for situations where an issue comes up during a meeting that requires legal advice, but an executive session has not been properly notice.
“Table the discussion and bring it back when proper executive session notice has been made,” she said.
The other eight types of subjects a public body is allowed to hold an executive session for include discussion, consideration, or consultation on matters of employment, assignment, or appointment; records exempt by law from public inspection; litigation and settlement discussions; contracts subject to negotiations; negotiations with employee organizations; international, interstate, city, town, tribal council or Indian reservation negotiations; school safety matters; and negotiations on the purchase, sale or lease of real property.
HB2804 would also require that any public body meetings related to the “goals and objectives” by which an officer, appointee, or employee of the public body will be evaluated “must be conducted in a public meeting.” However, any actual discussion or consideration about the person’s employment, assignment, or appointment would be done in private unless the person requests a public discussion.
A bill to limit the state’s 15 county recorders to participating in voter registration events only on government-owned locations appears to have died following pushback from election officials, including Arizona Secretary of State Katie Hobbs.
SB1358 would amend state law to ban county recorders, who are elected to office, from engaging in voter registration events at any “location, facility or property” that is not government owned. However, the bill introduced by Sen. Michelle Ugenti-Rita (R-LD23) has been mired in the Senate since Feb. 24.
ARS 16-134 currently requires a county recorders to make voter registration forms available free of charge at locations “throughout the county such as government offices, fire stations, public libraries and other locations open to the general public.” It also requires recorders to provide a voter registration form to any qualified person who makes such a request.
For years county recorders have utilized large-attendance events to help reach as many new voters as possible to maximize the return of their time and expense.
But Ugenti-Rita’s would restrict the elected county recorders from conducting voter registration activities at places like churches and synagogues, nursing homes, private colleges, homeowner association centers, American Legion halls, even shopping malls. And if the local county fair is held at property owned by a nonprofit group instead of the county, then that would be a no-no as well.
“I have seen where we’ve had a recorder who likes to frequent certain kinds of events at the exclusion of others,” Ugenti-Rita said during a meeting of the Senate Committee on Government, which she chairs. “We want to make sure we’re hitting all voters and not just setting up voter registration at certain events that may more align with our political views than others.”
Even if SB1358 were to pass out of the Senate its prospects for passing the House are uncertain due to strong opposition from the majority of the elected county recorders as well as the Arizona Association of Counties.
A top official with the National Border Patrol Council said Tuesday that while agents prepare for an influx of immigrants from as far away as Valenzuela they are seeing an uptick of unaccompanied juveniles illegally crossing into the United States.
That is the priority, according to Art Del Cueto, and arguing about whether to call the situation a “crisis” is a waste of time and effort, he told KFYI’s James T. Harris.
Del Cueto grew up in Douglas and has been a U.S. Border Patrol Agent for nearly 20 years in Arizona. He serves as NBPC’s vice president and is host of The Green Line, a podcast available through iHeartRadio.
According to Del Cueto, the public’s attention should not be fixated on whether or not the growing number of illegal crossers at the U.S. / Mexico border should be defined as a crisis. Getting too focused on what word to use simply detracts people from doing something about what is actually happening,
“There’s too many individuals -politicians- that are going back and forth which each other arguing whether it’s a crisis or not,” Del Cueto said. “And I think that effort is better spent trying to figure [how] to stop the problem we have at hand.”
NBPC represents nearly 18,000 U.S. Border Patrol agents across the country. Del Cueto acknowledged that a change of policies following a change in president is to be expected. However, he said “the problem is you can’t remove policies that work and replace them with no policies whatsoever.”
That means everyone needs to stop worrying about whether there is a crisis occurring. Instead, people need to engage in action, Del Cueto believes.
“I think people need to work together and understand… let’s figure out what needs to be done, let’s figure out from past policies what works,” he said. “Let’s think of what we need to do to make sure that our Nation’s borders are secured because it doesn’t affect just one side of the aisle.”
Del Cueto reminded Harris that there have been other past surges of undocumented immigrants which also concerned people at that time.
“But now, whether they want to use the word crisis or they don’t want to use the word crisis I don’t think it matters,” he explained. “At the end of the day there is a huge surge of individuals that are coming into the state.”
