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.
by Corinne Murdock | Sep 7, 2021 | Education, News
By Corinne Murdock |
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.
by Terri Jo Neff | Sep 7, 2021 | News
By Terri Jo Neff |
Those Arizonans interested in wagering on Thursday night’s NFL opening season game between Super Bowl champs Tampa Bay Buccaneers and the Dallas Cowboys will be able to legally do so, courtesy of a court order issued Monday.
Maricopa County Judge James Smith denied a request by the Yavapai-Prescott Indian Tribe for a temporary restraining order (TRO) which would have postponed the Sept. 9 start of mobile sports betting within the state of Arizona. An attorney for the Arizona Department of Gaming argued that postponement had the potential to result in “millions per month” of financial losses to several businesses involved in the new gaming opportunities allowed under Arizona’s 2021 Indian Gaming Compact negotiated by Gov. Doug Ducey.
In its request for the TRO, the tribe argued that allowing the new 2021 gaming compact negotiated by to go into effect would result in “direct, substantial and uncertain injury” for its members. Such results would reduce the amount of revenues available for tribal operations and programs, the lawsuit alleged.
The tribe also argued that Proposition 202 which was approved by voters in 2002 to create gaming compacts with Native American tribes, so state lawmakers can only amend the initiative if it furthers” the purpose of the original proposition.
However, Smith ruled the Yavapai-Prescott Tribe was unlikely to prevail in its lawsuit, which still remains in play against Ducey as well as Ted Vogt, the director of the Department of Gaming. But it’s clear the odds are not in favor of the tribe securing an order invalidating the 2021 Compact or House Bill 2772 signed by Ducey which changed parts of state law related to gaming.
Supporters of expanded gaming in Arizona welcomed Smith’s ruling, as the Sept. 9 start date for the new betting options is the same day the NFL begins its regular season. One of those supporters is Rep. Jeff Weninger (R-LD17) who helped ensure passage of HB2772 and worked with Ducey to amend the nearly 20-year-old compacts.
“Thrilled to hear this decision and I am excited for event wagering to start on Thursday,” Weninger tweeted Monday evening. “Today was a good day.”
Some Arizona sports teams are even promoting the new gaming opportunities to their fans, such as the Phoenix Suns’ sweepstakes offered for those who preregister with FanDuel. The prize is an opening night suite and $1,000 in team shop credit.
By not signing on to Ducey’s 2021 Compact, Yavapai-Prescott will likely lose out even more than most, because its two casinos are limited to games allowed under its 2003 Compact, which does not permit games such as craps and baccarat included under the new compact.
During Monday’s special court hearing, Smith learned that the Yavapai-Prescott Tribe had been in settlement discussions with the Department of Gaming until late August. Whether those negotiations will continue is unclear, nor is it certain what options would be available under current law and the 2021 Compact.
Another question will be whether the new gaming options increase overall betting activity across the state or simply pull revenue away from the 17 tribes which currently operate casinos across the state.
In addition to the new games which can be offered at tribal casinos, the 2021 Compact allows 10 of the 22 tribes in Arizona to be licensed to engage in off-reservation mobile sports betting. Those licenses have been awarded to the Ak-Chin Indian Community, Fort McDowell Yavapai Nation, Fort Mojave Indian Tribe, Fort Yuma Quechan Indian Tribe, Hualapai Tribe, Navajo Nation, San Carlos Apache Tribe, San Juan Southern Paiute Tribe, Tohono O’odham Nation, and Tonto Apache Tribe.
The 2021 Compact also allows 10 professional sports teams to be licensed for off-reservation mobile sports betting along with offering books at select sports venues. Those licenses were issued to the Arizona Cardinals, Arizona Coyotes, Arizona Diamondbacks, Arizona Rattlers, Phoenix Mercury, Phoenix Speedway, Phoenix Suns, and TPC Scottsdale.
There is one other active lawsuit against the Department of Gaming related to new sports betting opportunities, but its claims are not going to stymie the start of mobile sports betting.
Turf Paradise contends its Phoenix-area horse track qualifies for one of the professional sports licenses and that the decision to deny its application was incorrect. The lawsuit was filed even though the owners of Turf Paradise have administratively appealed the denial to Vogt.
