The prosecutor who brought criminal charges against Maricopa County Supervisor Don Stapley should be personally liable if a judge finds she improperly allowed the release of a sealed court document, the county’s lawyers argue in a motion related to the case.
The motion filed last week is the deepest chasm yet between the county Board of Supervisors and County Attorney Andrew Thomas over who has the authority to defend the county in lawsuits. It also is the starkest example to date of how the battle over authority in civil cases is bleeding into the criminal investigation of Stapley, said Barnett Lotstein, special assistant county attorney.
Lotstein said the motion to make prosecutor Lisa Aubuchon personally liable is a blatant attempt by the board to interfere in the criminal investigation of Stapley. Prosecutors, like other government employees, are normally not personally liable for actions they take as part of their official duties.
“This is more than bleeding into the criminal case. This is enveloping the criminal case,” Lotstein said. “This is an attempt to intimidate the prosecutor in the Stapley matter by threatening personal liability.
“What this seems to show very directly is there is a partnership between the Board of Supervisors and Mr. Stapley’s criminal defense team.”
But former Maricopa County Attorney Richard Romley, who was hired by the board to assist in its conflicts with Thomas, said the new motion is nothing more than an attempt to hold Aubuchon responsible if a judge finds she deliberately acted improperly in allowing the release of a sealed deposition to the Tribune last month.
The deposition was given last year by East Valley developer Conley Wolfswinkel in a 4-year-old civil case, and was sealed through a mutual agreement of the parties.
Aubuchon, the lead prosecutor in the Stapley case, filed a motion to have the deposition unsealed after he was indicted on 118 criminal counts. That motion was pending in front of the court when Maricopa County Sheriff’s deputies found a copy of the deposition during a search of the offices of Wolfswinkel-connected companies in January.
The Tribune obtained a copy of that deposition from the sheriff’s office through a public records request. Wolfswinkel’s lawyers have since sought sanctions against Aubuchon for allowing the document to be released, knowing it was sealed under a judge’s protective order.
The motion filed on behalf of the Board of Supervisors asks that if the judge does impose sanctions, they be specifically against Aubuchon, and that the county not be liable.
“The allegations of wrongdoing, if true, appear to constitute intentional and willful misconduct,” the motion states. “This type of personal misconduct is outside the scope and course of employment, and any damages resulting from it should not be a liability borne by Maricopa County.”
The motion does not offer an opinion as to whether the deposition was properly released by the sheriff’s office.
Aubuchon’s lawyer argued in a previous motion that she was not under any orders from the court not to release a copy of the deposition that was obtained in the sheriff’s search.
Aubuchon’s response also argued that release of the deposition to the Tribune was required under the state’s public records law.
The judge in the case scolded Aubuchon over the release of the document earlier this month, but has yet to rule on the motion for sanctions.
Romley said government employees who do their jobs and make good-faith decisions should not be personally liable if they are sued. But if Aubuchon deliberately allowed the sheriff’s office to release the deposition, knowing it was sealed by the court, that would mean she deliberately violated the protective order, Romley said. It also means the protections against personal liability normally afforded government workers should not apply, said Romley, who is not the lawyer who filed the board’s motion.
“If you are purposefully releasing documents in violation of a court order, then I hope it would have a chilling effect,” Romley said of making Aubuchon personally responsible for her actions.
Romley would not answer when asked if any similar motions were filed against his prosecutors while he was county attorney, adding there was not a case with similar circumstances.
Lotstein said that in more than 40 years of practicing law, he has never seen a case in which a government body like the board has attempted to make prosecutors personally liable for doing their job.
The board has been in a legal fight with Thomas’ office since December, when the indictment of Stapley was announced.
Stapley, a Mesa Republican, is charged with failing to list business and real estate deals on financial disclosure forms he is required to file as a public official.
Within weeks of that announcement, the board voted to strip Thomas of his ability to represent the county in civil cases. On Monday, the board created its own in-house civil litigation division that will answer to the county manager, not to Thomas.
Thomas has branded the actions illegal and says they are attempts to interfere with the ongoing investigation of Stapley. Thomas has challenged the board’s actions, including the vote Monday, in court.