by Terri Jo Neff | Sep 10, 2021 | News
By Terri Jo Neff |
Development agreements such as the one which required a former Gilbert property owner to pay the town nearly $760,000 toward the cost of public infrastructure improvements such as streets and sidewalks are legally binding contracts and not assessments that expire after a certain period of time, the Arizona Court of Appeals ruled this week.
In a unanimous opinion released Sept. 7, the court of appeals affirmed a 2005 development agreement between the Town of Gilbert and the property owner of an 11-acre parcel on the northwest corner of East Ray Road and South Lindsay Roads. The contract called for the owner -Greater Phoenix Income Properties- to pay “a proportionate share” of public improvements.
Those improvements, which included irrigation measures and relocating utilities, were completed long ago, according to court records.
The agreement also allowed a lien to be placed on the land until full payment was made. There was also a provision in the agreement expressly binding successor owners to the contract.
Fast forward to 2016 when Ray and Lindsay 11 LLC purchased the vacant land. Company officials acknowledged knowing the terms of the development agreement, including the lien provision. Ray and Lindsay 11 sold the still-undeveloped parcel to Richmond American Homes of Arizona in 2019 and paid off the lien in order to provide the new owners with clear title.
But before that, the company sued in Maricopa County Superior Court in an effort to void the development agreement with the Town of Gilbert. The litigation initiated in 2018 has cost the town almost $155,000 in attorney’s fees to defend the agreement.
Ray and Lindsay 11 argued that the agreement’s infrastructure reimbursement requirement was an assessment which under Arizona Revised Statutes 9-243(C) abates or expires after 10 years if the property has not been developed. If the agreement was treated as an assessment, the company could have pursued a refund.
Judge Pamela Gates, however, ruled the contractual development agreements like the one Gilbert utilized are governed by a different statute, ARS 9-500.05, and that there was no assessment against the property.
Gates’ ruling was upheld by the Arizona Court of Appeals, which noted state lawmakers passed ARS 9-500.05 to provide cities and towns the ability to negotiate and enter into broad development agreements as to “the conditions, terms, restrictions and requirements” for public infrastructure as well as the financing of and subsequent reimbursements for the costs “over time.”
The appellate opinion also pointed out a key difference between an assessment and a development agreement – specifically the required mutual assent of the parties.
Gilbert officials have been represented in the case by Charles Wirken of Gust Rosenfeld. Last July, Gates signed an order and judgment against Ray and Lindsay 11 LLC for $123,603 plus interest to cover the town’s attorney fees.
The Arizona Court of Appeals affirmed the lower court award of attorney’s fees. It also awarded the town another $30,342 for Wirken’s fees expended to fight the appeal. That award has not yet been converted into a judgment. Ray and Lindsay 11 has until Sept. 22 to file a petition for review with the Arizona Supreme Court.
The Sept. 7 opinion is not the first time the Arizona Court of Appeals ruled on this case.
In May, the parties received a memorandum decision from the court with the same conclusion. However, Wirken asked the court to consider rewriting the decision as a published opinion which can be cited by other municipalities threatened with litigation over the same type of assessment argument. The court of appeals agreed, hence this week’s opinion.
Gilbert City Councilwoman Aimee Rigler Yentes told AZ Free News she welcomed the news coming out of the Arizona Court of Appeals.
Yentes has lived in Gilbert for 20 years, and is the co-founder of the Gilbert Small Business Alliance. She supports bringing development to the town and is pleased to see the town’s development agreement upheld in this case.
“The Town’s approach to ensure reimbursements were honored to make taxpayers whole was well within their authority, as affirmed by the Court of Appeals,” Yentes said. “When a municipality enters into a development agreement, it is most critical that the private interest benefits do not exceed the public returns.”
by Corinne Murdock | Sep 9, 2021 | News
By Corinne Murdock |
Arizona Treasurer Kimberly Yee announced Tuesday that the state will no longer invest funds in ice cream giant Ben & Jerry’s, due to its violation of state law with its Israel boycott. Arizona law outlaws any state funds from going to entities that boycott Israel.
Arizona’s Unilever investments have dropped from $143 million to around $50 million currently. All investments will be removed by September 21.
In a press release, Yee explained that Ben & Jerry’s parent company, the British conglomerate Unilever PLC, refused to reverse the boycott or divest itself of the ice cream company.
“I gave Unilever PLC, the parent company of Ben & Jerry’s, an ultimatum: reverse the action of Ben & Jerry’s or divest itself of Ben & Jerry’s to come into compliance with Arizona law or face the consequences. They chose the latter,” said Yee. “It does not matter how much investment Unilever PLC has in Israel, with Ben & Jerry’s decision to no longer sell its product in the West Bank, the companies are in violation of the law in Arizona. Arizona will not do business with companies that are attempting to undermine Israel’s economy and blatantly disregarding Arizona’s law.”
Yee denounced the actions of Ben & Jerry’s in a follow-up tweet to the press release. She denounced the boycott as anti-Semitic and discriminatory.
“As Arizona Treasurer, I’ve divested all state funds from Ben & Jerry’s for boycotting Israel. Israel is and will continue to be a major trade partner of AZ,” wrote Yee. “ #IStandWithIsrael and I will not allow taxpayer dollars to go towards anti-Semitic, discriminatory efforts against Israel.”
Ben & Jerry’s announced their boycott in mid-July. They claimed that Israeli forces were illegally occupying Palestinian territory. They also stated that their end to ice cream sales wasn’t technically a boycott – that they would remain in Israel through “a different business arrangement.” The company promised to divulge further details about this arrangement, but have yet to do so.
Ben & Jerry’s founders, Ben Cohen and Jerry Greenfield, also argued that their decision to withdraw from Israel wasn’t antisemitic. Rather, they said that they rejected Israel’s policy of occupation.
“The company’s stated decision to more fully align its operations with its values is not a rejection of Israel. It is a rejection of Israeli policy, which perpetuates an illegal occupation that is a barrier to peace and violates the basic human rights of the Palestinian people who live under the occupation,” stated Cohen and Greenfield. “As Jewish supporters of the State of Israel, we fundamentally reject the notion that it is antisemitic to question the policies of the State of Israel.”
This is far from the first of the ice cream giant’s clear declaration of its political stance. They are consistently political.
Following George Floyd’s death last year, Ben & Jerry’s called for people to dismantle white supremacy, and told white people to examine their privilege and pay reparations.
After the January 6 incident at the Capitol, Ben & Jerry’s issued a flurry of social media posts and statements calling for then-President Donald Trump’s impeachment. They asserted that the rioters were advocating for white supremacy.
In February, the company unveiled a mural of National Anthem-kneeler, Black Lives Matter (BLM) activist, ex-NFL player Colin Kaepernick.
They’ve also released statements in support of trans rights, reparations, BLM, and illegal immigration (especially through their partnership with Migrant Justice’s Milk with Dignity – an organization that advocates for illegal immigrants).
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
by Corinne Murdock | Sep 8, 2021 | News
By Corinne Murdock |
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.
by Terri Jo Neff | Sep 8, 2021 | News
By Terri Jo Neff |
The City of Tucson has placed its controversial employee COVID-19 vaccine mandate on hold after Arizona Attorney General Mark Brnovich announced Tuesday that the city acted unlawfully last month when it passed an ordinance allowing for a five-day unpaid suspension of employees who do not provide proof of vaccination.
“Until we have a better understanding of our legal position in relation to today’s report, I have instructed staff to pause on the implementation of the policy,” Tucson City Manager Mike Ortega said after the attorney general issued his legal opinion on Tucson City Ordinance 11869 which took effect Aug. 20.
Brnovich’s opinion also noted that if the ordinance is not repealed within 30 days, he will advise State Treasurer Kimberly Lee to withhold millions of dollars from the city’s portion of state shared revenues until the city comes into compliance. He also said Tucson city officials could face potential liability claims from employees affected by the ordinance.
“Our office determined today that Tucson’s vaccine mandate is illegal, and the city could be held liable for attempting to force employees to take it against their beliefs,” Brnovich said. “COVID-19 vaccinations should be a choice, not a government mandate.”
A March 2021 report by the Arizona League of Cities and Towns estimated Tucson’s FY2021-2022 shared revenues at more than $175 million.
It is unclear whether simply putting enforcement of the ordinance on hold is sufficient for compliance with the attorney general’s 30 day deadline. Mayor Regina Romero said on Tuesday the city is reviewing its options and that she and the council “will need to provide direction as to how we proceed from here.”
Brnovich’s legal opinion came in response to an inquiry from Sen. Kelly Townsend about whether Tucson’s COVID-19 vaccine mandate for employees violated state law, particularly Senate Bill 1824 which prohibits the state and any cities, towns, and counties from implementing such a mandate.
Although SB1824 does not take effect until Sept. 29, Gov. Doug Ducey used his statutory emergency powers to issue Executive Order 2021-18 earlier this year to prohibit mandated COVID-19 related vaccinations for state, city, and county employees.
After Brnovich’s announcement, Townsend (R-LD16 called on Tucson Mayor Regina Romero to formally end the city’s ordinance, which applied to not only current employees but applicants as well.
“It is imperative that we not only respect the rule of law, but that we not allow our fear of a virus to run roughshod over the rights of the citizens of Arizona,” Townsend. “I wish to thank the Attorney General for his response and I encourage every elected official and bureaucrat to remember that it is the people of this State that employ us and whom we answer to, not the other way around.”
But Townsend did not stop there, calling on Tucson city employees to pursue legal action due to the ordinance.
“I further encourage those who were forced into taking a COVID-19 vaccine against their will in order to maintain employment to seek damages and to hold [Romero] fully accountable for this illegal act.”
It is unclear whether any Tucson employees have been disciplined with suspension, or whether ongoing refusals have subjected employee to more severe discipline, such as termination.
Private businesses are exempt from the provisions of Ducey’s executive order and SB1824. However, last month Brnovich issued a legal opinion making it clear such COVID-19 vaccination mandates must allow for religious and medical exemptions for employees.
That legal opinion was also issued in response to a request from Townsend.
by Corinne Murdock | Sep 8, 2021 | News
By Corinne Murdock |
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.
Santa Cruz County had 20 federal-only ballots cast. La Paz County had 11 federal-only votes. Greenlee County had a total of 4 federal-only votes.
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
by Corinne Murdock | Sep 7, 2021 | News
By Corinne Murdock |
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.
