12/28/2009 12:24:00 PM La Paz County Administrator Dan Field responds
to Sheriff's Association charges
Dan Field La Paz County Manager
I have attached several documents for your review and comments involving the letter from the AZCOPs attorney, Martin Bihn.
1) NEPOTISM ALLEGATION. Bihn alleges violation of the "nepotism" statute found in the Arizona Revised Statutes, which states the following:
38-481. Employment of relatives; violation; classification; definition
A. It is unlawful, unless otherwise expressly provided by law, for an executive, legislative, ministerial or judicial officer to appoint or vote for appointment of any person related to him by affinity or consanguinity within the third degree to any clerkship, office, position, employment or duty in any department of the state, district, county, city or municipal government of which such executive, legislative, ministerial or judicial officer is a member, when the salary, wages or compensation of such appointee is to be paid from public funds or fees of such office, or to appoint, vote for or agree to appoint, or to work for, suggest, arrange or be a party to the appointment of any person in consideration of the appointment of a person related to him within the degree provided by this section.
B. Any executive, legislative, ministerial or judicial officer who violates any provision of this section is guilty of a class 2 misdemeanor.
C. The designation executive, legislative, ministerial or judicial officer includes all officials of the state, or of any county or incorporated city within the state, holding office either by election or appointment, and the heads of the departments of state, county or incorporated cities, officers and boards or managers of the universities.
EMPHASIS ADDED. See http://www.azleg.gov/search/oop/qfullhit.asp?CiWebHitsFile=/ars/38/00591.htm=nepotism
In reviewing the statute you will see that in order to establish "nepotism" the officer must "appoint or vote for appointment" within the third degree.
In the instant action, Supervisor Holly Irwin neither voted nor appointed her husband, who was a current La Paz County employee working for the Sheriff's Office. I have attached copies of the La Paz County agenda and minutes for September 21st, 2009 creating the position "Certified Chief Park Ranger". Clearly, the action involved Supervisor Irwin's recusal from the subject. Moreover, the County Attorney was present during this meeting.
Bihn also contends that, "[u]nder the nepotism statute a public official may not, '. . . work for, suggest or arrange" such an appointment. However, this allegation made by Bihn shows his misinterpretation of statutory construction. The section he is referring to addresses a situation where a public official "trades" an appointment of his relative in exchange for appointment/vote for the appointment of another employee (this typically is found between elected officials or departments).
In the instant situation, Supervisor Irwin neither suggested, arranged, will she have her husband work for her, nor will she "trade" an appointment for her husband appointment.
2) RECKLESS DISREGARD AS TO ITS FALSITIES. In reviewing Mr. Bihn's letter it is clear that he is merely throwing allegations out to see what sticks or even worse to manipulate public opinion. I have attached the agenda and minutes of September 21st, 2009. You will see that Holly Irwin neither voted to create or fill the position with her husband.
This fact can be simply illustrated by comparing the statements made in his December 18th, 2009 letter. For instance, in the first paragraph Mr. Bihn alleges that Supervisor Irwin violated the law by, ". . . creating a new position of "Certified" Chief Park Ranger and then filling that position with her husband"; then immediately changes this statement that, ". . . Holly Irwin voted to create the position, but then abstained from voting on the actual appointment of her husband."
These discrepancies in Mr. Bihn's statements evinces his recklessly disregard of the truth. He, himself, does not know what actually occurred and is relying upon rumor or false comments from his client(s). He simply could have reviewed the La Paz County Website to access the pertinent minutes and agenda for September 21st, 2009. See http://www.co.la-paz.az.us/
As you are aware, although Supervisor Holly Irwin may be considered a "public figure"; under New York Times v. Sullivan, 376 U.S. 254 (1964), Mr. Bihn's disregard for even checking the facts constitutes "actual malice" for defamation purposes. In other words, he made his statement with reckless disregard of its falsity. Any further publication of these falsehoods would be inequitable.
In addition, Mr. Larry Irwin is not a "public figure" in the same sense and Mr. Bihn's reckless allegations are held to a much lower standard of merely being shown to be false and have resulted in damages to Mr. Irwin.
3) LARRY IRWIN WAS LATERALLY TRANSFERRED. Larry Irwin's reassignment was nothing more than a lateral transfer. As we discussed, the County Board maintains and sets policies concerning employees, especially for payroll, appeals, and grievance situations. Section 2 of the La Paz County Employee Handbook relates to Appointments. More specifically, Section 2.1(A) and Section 2.3 maintain that:
2.1 Appointments.
Vacant positions in the Classified Service may be filled by:
A. Current employees through promotion, reassignment, or transfer. . .
* * * *
2.3 Transfer.
A transfer of an employee may be made between comparable positions within a Department or from a position in another County Department to a position for which the transferee is qualified.
EMPHASIS ADDED.
This includes a "transfer" as defined within the La Paz County Employee Handbook as, "[a] change in the assignment of an employee from one department or from one position to another position in the same grade." Larry Irwin was transferred to another department at the same pay and grade.
You indicated that the Sheriff's Department stated that Mr. Irwin did not resign. Pursuant to the La Paz County Employee Handbook Section 9.1 an employee "may terminate employment with the County by submitting a written resignation." Mr. Irwin was not terminating employment with the County. Therefore, there was no need to resign.
The Sheriff's Office is nothing more than another La Paz County Department operated by an elected official under the personnel policies of the Board of Supervisors. The Employee Handbook maintains in Section 3.4(F) and Section 6.6 that a lateral transfer would be the appropriate vehicle for moving from one department to another so that the transferred employee retains his accumulated leave and compensatory time. I find it odd that the initial department would want to pay for a transferred employee's leave time instead of passing that obligation on to the subsequent department.
4) NO LEGAL REQUIREMENT TO POST OR TEST FOR LATERAL TRANSFER. In Arizona there is no statutory requirement mandating that every position at the County must be posted. Bihn maintains that applications must be accepted, testing conducted, and searching for candidates. This is not so. These are solely matters of internal policy, not of law.
The only reason to seek competitive applicants is to increase your hiring pool choices. The argument made by Mr. Bihn that there are other La Paz County deputies who may be interested in the position misses the underlying reason for the subject transfer. The transfer was made to mitigate known exposure to the County taxpayers for a hostile work environment, intentional interference with an ongoing criminal case, and protection under the law to reprisal. Adjustments to policy have occurred many times over the years to accommodate personnel complaints, appeals, grievances, settlements, etc. It is not unusual in anyway.
Perhaps Mr. Bihn is suggesting that the County should proceed through an open announcement anyway, when knowing who was going to be hired. This is nothing more then a charade and a subterfuge. However, when there are issues of primary public interest at stake involving formal allegations against a County law enforcement agency of unlawful activities by its officers, mismanagement, gross waste of monies, and/or abuse of authority there is an explicit obligation to bring those matters to light instead of covering it up. This is especially true for a sworn law enforcement officer. Once an employee brings these matters to light, it is the responsibility of an employer to protect against reprisal or retribution. Larry Irwin attempted to use the chain of command but his work environment became more than hostile, it became dangerous. Under the circumstances notice to alleged wrongdoers is not prudent or necessary.
Perhaps Mr. Bihn who represents the union AZCOPs does not agree with the Arizona State Constitution. Unlike California, the State of Arizona Constitutional Article XXV mandates that employees have a "right to work" without joining a union. More specifically this Article states:
ARTICLE XXV-RIGHT TO WORK
Right to work or employment without membership in labor organization
No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall the State or any subdivision thereof, or any corporation, individual or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization.
There is no requirement that County employees are required to be a member of unions. The La Paz County Board of Supervisors does not recognize AZCOPs as the union representative organization for collective bargaining purposes for law enforcement. As we discussed, only certain political organizations within this State recognize them. Moreover, La Paz County's constituency is very conservative and even the mention of union activity would lack majority public support of voters. This has been illustrated recently when AZCOPs' efforts to place collective bargaining on the ballot through a citizen initiative failed (an initiative does not even require majority support in Arizona).
You inquired into the membership of AZCOPs within the La Paz County Sheriff's Office, as I explained not all Sheriff Department employees are members and some that are members have joined merely for defensive purposes against the organization and the Sheriff administration.
What confuses me is that Larry Irwin is a member of AZCOPs and it seems that the actions being taken by AZCOPs and its legal representative is meant to quell Mr. Irwin's "whistleblowing"-Why??
5) ILLEGAL PROCUREMENT OF OUTSIDE LEGAL COUNSEL. In August of 2009 Sheriff Lowery and his Administration approached the law firm of Wilenchik & Bartness from Phoenix for representation against the Board of Supervisors. It wasn't until the Finance Department received a bill in late September/early October that the Board of Supervisors, as well as the County Attorney even knew of this action.
The Sheriff failed to follow the law which requires him to specifically seek the County Attorney's approval prior to hiring these attorneys. The Sheriff did not receive the County Attorney's approval to hire outside counsel. I have attached above the County Attorney's e-mail stating as much.
The Sheriff has a clear obligation to inform the Board or even the County Attorney that he has been contemplating litigation. Set legal procedures of procurement have not been followed to allow him to do so.
The problem the Board is now facing is that the Sheriff has sought legal advice from the County Attorney prior to hiring his private lawyers. Frankly, the Sheriff and his Administration did not like or agree with the advice provided to him by the County Attorney. So, he decided to shop around until he could find some lawyers that would give him what he wanted. This is illegal in the State of Arizona.
In fact, the County Attorney had no idea that the Sheriff did so, until I contacted his office about an invoice for legal fees sent to the County. The Sheriff and its Department has been attempting to spend taxpayers' money without a scintilla of concern that the taxpayers already pay for legal counsel by funding the County Attorney Office. Both the County's and State's economies are in crisis and will be for some time, yet the Sheriff's open lack of desire to comply within budgetary constraints and cost saving policies is inconceivable.
This is blatant disregard of the laws and rules by the primary investigative law enforcement agent in the County. It is hard to expect citizens to have respect for law enforcement when that agency is itself breaking and ignoring the law. I attached a study completed by Arizona State University, Morrison Institute for Public Policy entitled, "Confidence and Caution: Arizonans' Trust in the Police" (this study basically supports the position that Arizonans trust law enforcement agencies, but it merely takes one or two bad incidents/actions or indiscretions by officers to deteriorate that trust).
6) ATTORNEY GENERAL'S CURRENT INVESTIGATION/RELEASE OF DOCUMENTS. Unfortunately, as to releasing any matters publicly, the specific incidents are currently under investigation by the Arizona Attorney General's Office and are not public record. Upon conclusion of the investigation such matters can be released with redacting privacy identifiers as mandated by law. In addition, an amended list of additional subsequent incidents shall also be forwarded to the AG for further review.
I have attached the Parker Pioneer Article related to the embezzlement case that Larry Irwin as primary investigator was ordered to discontinue working on for the AG by the current Sheriff and Chief Deputy (this case has not yet been adjudicated). As a result of the transfer, Mr. Irwin has maintained his certification and will be able to continue his assistance to the AG on this important case.
Once the investigation is concluded, I will release any public records associated with the matter. Moreover, Arizona law does not protect specific sheriff deputies' disciplinary records once complete, investigations and specific disciplinary files should also be released, as well. Some of those documents are maintained by the Sheriff's Office itself. It will interest you that several of the individuals you have talked to are implicated in the overall issue (remember "The truth is an absolute defense").
Posted: Wednesday, January 06, 2010
Article comment by:
Your world, not mine.
This is truly a sad time for all of La Paz County, its employees, and its people, but it will end.
Dan Fields mentioned the deadly sins. Dan Fields, I would very much recommend some self-reflection at this point in your life and earthly existence. "What's done in the dark will be brought to the light".
The truth is what is seeked and it is UGLY. All is fair in love and war.
Posted: Monday, January 04, 2010
Article comment by:
No name provided
Fields is acting as a county manager. Let us fault him for him being an attorney. The guy knows the law. I scares the sh__ out of theses guys when someone knows what the heck they are talking about. The blogs going on her and on the Blythe paper are done by cops. The only good thing is they edit these ones. This is in direct contrast to what was going on with the LPCSO TALK blog. This shows you how divided the department is. It was stated before in a past blog. What the heck are they affraid of. Someone able to investigate them for the crimes that may happen under the current bosses or deputies. It sucks for them. During todays issues here in Parker or La Paz they should be affraid. This will come out. Larry is no longer working for the Lowery because he had no back up. COME ON. The cops on her post your names. lets get this going good. If you gusy are so bad (deleted), post your names and see what’s up. Or do you have things others can expose? This all goes way over your guys pay grade. Just stay out of it or man up.It makes all cops look bad. More so with the La Paz County Guys. Parker PD, Qartzsite PD and CRIT PD is not getting slammed here. It will all come out and the fine citizens of this count will bitch, but not do a dam thing to make things right here. Supervisor Irwin has done nothing wrong here. It is the county sheriff and his cronies that are wrong. So lets throw stones at the GLASS HOUSE YOU GUYS LIVE IN. Words for the day:
ALICIA
VICTORIA
QUADS
ATC
SELLING
RCSO
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Posted: Sunday, January 03, 2010
Article comment by:
No name provided
Nepotism Illegal. Don't you think if Irwin was not doing his job Lowery would have written him up several times by now and Fired him? If he had any grounds Irwin would be long gone.
Posted: Sunday, January 03, 2010
Article comment by:
No name provided
Birds of a feather flock together.
Posted: Saturday, January 02, 2010
Article comment by:
No Wonder Nepotism is Illegal
In regards to Larry Irwin being such a great guy and god's gift to law enforcement, the Hardest I Ever saw him work while on Duty in a County Vehicle was when he was Campaining for Hal Collett as Sheriff, even putting up signs for Collett in Uniform. Irwin made it known during this time what a true Brown Nose Backstabber he truly was.
Then Don Lowery Wins, Lowery told Irwin that he would have to work shifts and handle calls, this was to much for Irwin to handle so a new position was created by his wife and cronies. And when it is questioned they start claiming that he was in danger. Sad thing is it's a Rural Agency and I've seen LPCSO Deputies wait up to 40 to 45 minutes for backup, and because of this former Sheriff Marvin Hare begged the board of Stupidvisors for additional Deputy positions. Now when it comes to the husband of one of the board members its a different story. No wonder Nepotism is Illegal ???
Posted: Saturday, January 02, 2010
Article comment by:
Bihn's bar complaint link
Posted: Saturday, January 02, 2010
Article comment by:
Shame on you Joe and Don
Shame on you,Joe Escorza and Don Lowery. Joe I have always considered you to be a friend, but no offence I never thought you should be a cop. As long as I can remember you have been getting in trouble for one thing or another. I don't know how many times I have heard about you doing crazy stuff that you should have lost your job for and probably been arrested. I mention this because I heard that you and Don Lowery started this whole thing to once again save your butt. As far as you Holly, I don't know you but I have seen the minutes and it's obvious they are trying to railroad you. My advise to you Mrs.Irwin is don't worry about Joe he does this and usually he ends up trying to get out of the messes he creates. I won't comment to much Don. Even though he has always been a shady little guy, I feel sorry for Sheriff Lowery. Sorry about the poor grammer I haven't written a letter in twenty five years.
Posted: Friday, January 01, 2010
Article comment by:
M
Supervisor Holly Irwin has shown she is a fair, conscientious and capable representative of the interests of the residents of District 3 and La Paz Co. Dan Field, La Paz Co Manager, presented the documented 'facts'. Perhaps the better questions might be: Why did the Sheriff try to stop an investigation by the State AG? To close for comfort? Why did the Sheriff seek outside legal counsel (an unnecessary expense to the co. taxpayers)? Why didn't he seek the advise/approval of he County Attorney, who we elected to look out for our interest and is required by law? Supervisor Irwin recused helself (as the agendas, minutes & other documents show) of any involvement in the legal, lateral transfer of this employee, Larry Irwin, from one co. department to another, which is the legal responsibility of the Bd of Supv in order to mitigate exposure to the Co taxpayers (save us possible future legal expense). These actions by the Sheriff and the statements made by attorney Bihn, place la Paz Co residents in yet another potential legal battle, which we can't afford. Perhaps egos and chauvinism need to be put on a shelf and everyone should take a 'time out' from this inter-departmental fighting and start working'FOR THE PEOPLE'.
Posted: Friday, January 01, 2010
Article comment by:
No name provided
If they want an investigation as to nepostism why didn't they go to the county att. first? Isn't that what we pay him for? Why should we tax payers pay an outside att.?
Posted: Friday, January 01, 2010
Article comment by:
What are they Worried About
In regards to the information in this article as I understand it there are concerns of Nepotism within the creation of a Job for a Larry Irwin and that his wife Holly Irwin is a member of the La Paz County Board of Supervisors. Also the concerns in creation of this position why wasn’t it advertised out of fairness and to be able to get the Best Qualified Tenured Person available not only from the Sheriff’s Office but from Law Enforcement Officer’s from around the State. Another Concern in these times is it Cost Effective to create a position when there only Approx. 30 calls generated per year. These concerns were brought by County Employee’s to the attention of the AZ/COPS Union. AZ/COPS Union Attorney Martin Bihn is Requesting a Fair, Independent, Unbiased Third Party Investigation into the matter.
Suddenly the Name Calling and Finger Pointing begins amongst Larry Irwin, Holly Irwin, and Dan Fields (the County Manager) apparently attempting to pull the heat off themselves.
Now my question is What is Larry and Holly Irwin and Dan Fields Worried about? If they have done nothing wrong then they should encourage the Investigation to prove their Innocence, but it is apparent that there are agendas that are personal and not for the Best Interests of the County and its Citizens. Is there a Fear of the Truth being brought out into the open for everyone to see?A Fear of Exposer of What They Really Are? Does the other 2 Board Members want the Truth to be seen ?
I’ve heard the Excuses many times - “Well it’s a New County, we have to Learn, It’s Part of Growing Pains”. La Paz County is about 27 years old now, Don’t you think its about time that we Unite get up and Stand on Our Feet and Behave like Adults, and Get away from the old Good Old Boy system that We tried so hard to get away from that’s why we broke away and split from Yuma County because we felt the North end was not getting a Fair Shake, but it seems that those Problems Still Exist and Encouraged.
The Issues Aren’t whether your Liked or Not and what you did to get there. The Issue is What is Right and What is Wrong and What is the Best for La Paz County !!!!!!!!!!!!!!! What are they afraid of ????????????????????????
Posted: Thursday, December 31, 2009
Article comment by:
What the?
Who are you to write weather or not the work environment was hostile or not. I am a county employee and know that there are severe issues with the sheriff department. I do not work there but do talk to some of the deputies and they fear for their jobs under Lowery, Patterson and Escorza. I have heard Irwin was a target and it appears he still is. Just let this guy do his job. Oh wait you don’t want someone certified in the county who can investigate YOU (sheriff deputies) for criminal activity!!!!!! Explains it all.
Posted: Thursday, December 31, 2009
Article comment by:
No name provided
"Don lowsy and his band of roge gypsys create a hostile work environment to force a valued deputy 2 transfer positions and then create a fairy tale 2 try and make his wife pay 4 it." And what does the person who wrote this even know about how a position should be filled? Are you even in law enforcement? No I doubt it. Yes your so called inocente Mrs. Irwin was in the wrong as was the rest of the board for the way this position came about and how it was filled. It should of been posted as an open position and other citizens of this fine County employees as well should of had the right to apply,test and or interview for it. Those of you who think Larry is being mistreated make me ill. Non of you work for the Sheriff Department so just how would you even know what goes on inside too busy listening to and believing stories told by dumber then dumb? This county was misled by each and every board member during their election lies. Not one of them have done much if anything to make this county a better place to work or live. I have known Don Lowery for a number of years and have never known him to lie.
Posted: Wednesday, December 30, 2009
Article comment by:
Law-Abiding Citizen
Kudos to that Board! The guy that said that the County needs more deputies must be joking or is one french fry short of a happy meal. I can't believe anyone these days can say that government needs to hire more deputies when we are in a major depression and the rest of us are suffering. That guy had to be a union cop or O'Bama. Maybe La Paz should get rid of some of those criminal deputies being looked at. It would probably drop the crime rate in that County. It sounds like this park ranger will be better then some of those county yokels. The River has a lot of use and the parks get overfilled. Park Rangers don't just sit around eating donuts and shining their gun like some of those other cops. Yogi and Boo-Boo better watch out there's going to be a new sheriff in town!
Posted: Wednesday, December 30, 2009
Article comment by:
Quartzsite Native
I have a question everyone. Why is it I have seen Supervisor Irwin eating lunch with a senator and a representative during the saving of our Quartzsite Food Bank and the only guys I have seen the sheriff eating lunch down here is his number two guy and Mike Roth? Didn’t Supervisor Irwin beat Roth in the primary election? Thought!! Conspiracy?
If it is a conspiracy, what a bad thing to do when you do not get your way or lose an election. Lets hope not.
Posted: Wednesday, December 30, 2009
Article comment by:
No name provided
I have been a member of this community 4 quite sometime have seen alot but this takes the cake,Don lowsy and his band of roge gypsys create a hostile work environment to force a valued deputy 2 transfer positions and then create a fairy tale 2 try and make his wife pay 4 it.What the BIG DON doesnt have enough on his plate already with (deleted),our tax dollars may I remind you.What is really happening here?A sheriff that cant tell the truth,deputies having relationships with underage girls (Deleted) )on a regular basis,this is who we trust 2 protect and serve,WOW whats wrong with this picture,I think its time 2 dig alittle deeper all this over a transfer!!!What will we do in a real emergency??Think about it!
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