Kevin Ross has beaten the criminal charges against him, at least for now. The legal battle cost the former Maricopa County assessor more than two years and a quarter-million dollars.
Ross was indicted on three felony charges in May 2004 by Arizona Attorney General Terry Goddard, who alleged Ross had used secret documents from the assessor’s office for personal gain. One of the charges was dismissed by a county judge, who found the document Ross used was a public record. A jury acquitted Ross on the second charge, but convicted him on the third.
The Arizona Court of Appeals tossed the conviction earlier this year, concluding Ross did not misuse his office when he used a public record in a part-time business venture. Ross’ efforts to profit from public records in the assessor’s office may have raised ethical issues, the judges ruled. But they did not break the law.
The state is appealing.
The case against Ross started with two disgruntled employees, who became the state’s key witnesses by feeding attorney general’s investigators inside information, according to court records. As they were helping prosecutors build the case against Ross, the two men met with Keith Russell, a potential political rival, urging him to get into the race. After Russell, the current assessor, defeated Ross in the 2004 Maricopa County election, he named the state’s star witnesses as his top two deputies.
Ross said prosecutors offered him a plea deal. But he chose to fight because he believed he had done nothing wrong.
“If I would have thought I had any ill intent or any culpability whatsoever in attempting to deceive the public or hurt anybody, or take anything that wasn’t warranted me, I would have pleaded and accepted responsibility,” Ross said of his decision to fight the charges. “But I wasn’t going to get played.”
Goddard maintains Ross’ case met all of the elements of a conflict of interest, two of the three charges he leveled against the Gilbert Republican. The Superior Court judge was wrong when he ruled the information Ross was using was a public record, and the appeals court was wrong when it decided Ross did not have a conflict, Goddard said.
“He used his office as only he could have done to get a valuable benefit for himself,” Goddard said of Ross.
The case against Ross revolved around a computer compact disc with the names and addresses of 15,000 low-income property owners at least 65 years old who qualified for a special property-tax break approved by voters in 2000.
The list was created in 2001 by the assessor’s office, which sets property values for tax purposes.
According to court records, interviews and investigative reports, the case unfolded this way:
In January 2003, Ross approached Gary Graham of Colonial Mortgage Co. about working part-time selling reverse mortgages, which allow those who qualify to take out loans against their home’s equity that do not fall due until they die or the property is sold.
The job was legal, so long as it did not influence or interfere with his job as assessor.
Ross provided the compact disc, which Graham used to create a mailing list to market reverse mortgages. The two were to split the sales commissions, which would have amounted to about $400 on each sale for Ross.
The list did not generate a single sale.
By April 2003, Ross had grown uneasy about the political fallout if his arrangement with Colonial was made public, and asked Graham to stop using the list. Ross severed his relationship with the company a short time later.
By late 2003, Ross was planning a shake-up in his office. He says he was fed up with the poor performance of his top two aides — intergovernmental liaison David Bailey and chief deputy Fred Kelly.
About January 2004, Ross forced Bailey to resign. Ross says he also told Kelly that he would not be kept on after the election later that year.
Bailey and Kelly responded within weeks by taking allegations that Ross was breaking the law to the Maricopa County Attorney’s office, according to court records and investigative reports. Since the county attorney provides legal advice to the assessor, the case was forwarded to the state attorney general.
Bailey would not discuss his employment with the assessor’s office when contacted by the Tribune.
Kelly denied in an interview that he was being forced out of his job.
Goddard’s office launched an intensive investigation, which included surveillance of Ross and secretly installing a tracking device on his car.
Two months after being forced out of the assessor’s office, Bailey arranged a meeting with Kelly and Russell, a Mesa Republican who was interested in running against Ross. Both Russell and Kelly say Bailey was forceful in urging Russell to run and in revealing that Ross was under investigation by the attorney general’s office.
“He told me that people were looking at stuff,” Russell said of Bailey. “I don’t know if the words ‘criminal investigation’ were used. I think he had mentioned that there were complaints with the attorney general’s office.”
Bailey made it clear he wanted his job with the assessor’s office back, Russell said. Kelly did not raise the issue of staying on at that meeting, Russell said, adding he did not make any promises to either man. Within weeks of the meeting, Russell filed as a candidate for assessor.
That meeting was the first in a series of events that played out over the next two months that would be critical to both the state’s case and Ross’ defense, according to court records.
On April 28, 2004, Scott Blair, a private citizen unrelated to the assessor’s office or Ross, filed the first formal public records request for the list. Ross asked the county attorney’s office for an opinion as to whether it should be released.
Bruce White, a deputy county attorney, responded in a May 11, 2004, e-mail that there was no reason to withhold the list from Blair. If Ross wanted to claim the information was confidential, the county attorney would back the assertion, White said.
“We could defend such a position,” White wrote. “But as you probably know, courts are inherently hostile to privacy and confidentiality claims in the absence of a specific statute. In conclusion, it is your call whether to assert confidentiality ... but the Arizona statutes do not require you to withhold the mailing list.”
Blair was given the list, despite objections from Kelly, according to court records.
Ross was indicted May 27, 2004, on two counts of conflict of interest for giving the list to Graham and using it to market reverse mortgages. He also was charged with one count of obstructing a criminal investigation for telling Graham to deny he’d gotten the list from Ross.
Prosecutors charged that seniors who applied for the property-tax freeze had been assured their information would be kept confidential. They also alleged Ross had insisted the list was not a public record until he learned he was under investigation. At that point, Ross reversed his position and ordered his deputies to release the list, according to prosecutors. That allegation was based on a conversation Kelly said he’d had with Ross.
Ross’ attorney, John Hannah, countered the list Ross gave to Graham was a public record that had only names and addresses. The information on who got the property-tax freeze could be obtained through the assessor’s Web site, though not in list form, Hannah noted. All financial information from the applications was kept secret, as promised in promotional materials and the application, he said.
In his closing arguments, Hannah characterized the state’s charges as the result of a sloppy investigation that relied almost exclusively on the word of Bailey and Kelly, two men fighting for their jobs.
Ross tried to run for re-election while under indictment. Russell defeated him by a wide margin in the September 2004 Republican primary.
After he won the general election, Russell kept Kelly on as his chief deputy and hired Bailey as his finance administrator.
Kelly remained Russell’s chief deputy until July 2006. Russell then kept him on as a consultant until last December.
Russell said he asked Bailey to resign in July 2006.
Bailey said his cooperation with the attorney general’s office had nothing to do with his getting a job in the Russell administration.
Kelly said he was not trying to hustle up a job when he met with Russell in the midst of the state’s investigation, and in fact urged Russell not to run.
Russell said he chose to keep Kelly and bring back Bailey to give the office some stability after the turmoil caused by the prosecution of Ross. He was aware at the time that it might look bad to give jobs to the two people who had been the state’s key witnesses against Ross.
“Absolutely, it gave me pause and I worried about whether or not it was the right thing,” Russell said. “My decision in large part was what is the best thing for the office.”
Ross was convicted of a single count of conflict of interest in his December, 2004, trial.
The court of appeals overturned that conviction in January.
However, while the court sided with Ross and threw out the charge, the unanimous opinion makes clear the judges did not approve of what he did.
“For Ross to seek personal profit from information publicly available (although not widely) from his own agency may raise ethical and public records issues, but it does not violate” the conflict of interest statute, they wrote.